Barbara Ruth Jones v City Clean Payroll Pty Ltd
[2021] FWC 6322
•11 NOVEMBER 2021
| [2021] FWC 6322 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Barbara Ruth Jones
v
City Clean Payroll Pty Ltd
(U2021/3622)
DEPUTY PRESIDENT EASTON | SYDNEY, 11 NOVEMBER 2021 |
Application for unfair dismissal remedy - serious misconduct - alleged bullying and harassment - contaminated investigation - lack of procedural fairness - absence of dedicated human resources management specialists - remedy - compensation
[1] On 27 April 2021 Ms Jones made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) alleging that she had been unfairly dismissed from her employment with City Clean Payroll Pty Ltd. Ms Jones seeks compensation.
[2] City Clean Payroll Pty Ltd (“City Clean”) is a building maintenance service contractor that provides cleaning services, including cleaning services to high security premises such as defence properties. Mr Angyalffy is a director of City Clean and was the decision maker in relation to Ms Jones’ employment.
[3] Ms Jones commenced employment at the Randwick Army Barracks on 29 June 2020 as a casual cleaner. In mid-October 2020 she was promoted to a supervisor’s position and became a permanent employee in November 2020. As a supervisor Ms Jones reported directly to Mr Lewis, who is the Operations Manager and who is responsible for seven sites.
[4] Ms Jones says that from December 2020 she became more stressed and anxious regarding her position, working long hours and dealing with staffing issues, and that she did not get adequate support from Mr Angyalffy or Mr Lewis. The staffing issues Ms Jones says she encountered included having to deal with complaints from the client, an alleged conspiracy between some workers to press for the return of Ms Jones’ predecessor, being ignored by a particular group of employees and the like.
[5] In February 2021 Ms Jones saw a doctor about stress, took one day off work at her doctor’s direction, and told an untruth to Mr Lewis as to the reason why she took sick leave – she told Mr Lewis that she had a pinched nerve in her neck and that her shoulder was sore.
[6] On 7 April 2021 two employees, Kerry Gordon and Kylie Sloss, raised concerns with Mr Lewis about alleged bullying behaviour by Ms Jones. Mr Lewis sent Mr Angyalffy an SMS summarising the complaints:
“Good Morning Adam …. at 5.30 this morning I had two staff members from Randwick make a passionate speech to have Barbara removed as Supervisor … it was a crisis I was trying to avoid but Barbara is her own worst enemy .
I am asking you to have an emergency meeting with the staff so that you can hear the sort of things that Barbara say about You me and Sally as dumb cunts …those words came from Barbara mouth … the girls this morning want a meeting they have had enough !!!!!!
I will wait for you call …
Regards R”
[7] Mr Angyalffy and Mr Lewis then met with the two complainants in a café at Maroubra Junction on the afternoon of 7 April 2021. They were told that almost all the staff at Randwick Barracks had been bullied by Ms Jones, that she was rude, spiteful and nasty, and that staff had had enough and did not want to put up with it any longer. They were also told that Ms Jones belittled staff, gossiped about the staff behind their back and had created a hostile environment.
[8] Mr Angyalffy and Mr Lewis decided to meet with Ms Jones the next day, 8 April 2021, to raise the allegations with her and to “get her side of the story.” The two men agreed that they would not tell Ms Jones before the meeting why they wanted to talk to her.
[9] When Mr Lewis arrived on site on 8 April 2021 he immediately learned that another employee, Milenko, had resigned his employment because “he’s not going to put up with how [Ms Jones] treats him anymore.”
[10] The meeting between Ms Jones, Mr Angyalffy and Mr Lewis did not go well for anybody. Ms Jones’ account of the meeting on 8 April 2021 includes the following:
“The discussion was then changed by the Respondent telling me he had received complaints regarding my interactions with staff members around the base.
I asked the respondent who had made these complaints, when they had been made and the dates these (supposed) incidents had happened.
The Respondent gave me the name of Paul Lunt (Randwick Barracks Site Manager) tell me that he had witnessed me yelling and swearing at staff. No evidence
I was shocked by this as I had only been in the presence of Paul Lunt, Richard Lewis, Karla Duroy (BGIS), Michelle (cleaner) and myself when we did an inspection on Building 504.
I think asked who else had made complaints and the respondent refused to give me any other names.”
[11] Mr Angyalffy’s account of the same meeting included the following:
“After some 15 minutes of discussion, I had formed a view that there was no doubt truth to what I had heard from the staff. I explained to The Applicant that as there is a zero percent tolerance for bullying and harassment, I had no option but to terminate her from her position at Randwick Barracks and notified her that she was not to return to Randwick Barracks. I explained to her that we would further investigate the claims, however from what she had just said, there was no future for her at Randwick and her position at Randwick was terminated.”
[12] Mr Lewis’ account of the meeting includes the following:
“[Mr Angyalffy] started by saying we were here after hearing some serious allegations of Bullying and Harassment and Intimidation against her to which she reply rapidly “Its all bullshit everybody loves me hear its all bull shit. Barbara then became animated and wanted to know their names as she has a right to know and the right to question them. Adam said this wasn’t about naming names it was about addressing some direct accusations of her behaviour towards staff in particular Milenko and answer why she personally made rude gestures behind Milenko back, Barbara replied I was trying to be funny and because he deserved it he’s a rude prick and she said I didn’t want him at Randwick.”
[13] There was some discussion about moving Ms Jones to another site, HMAS Kuttabul, however the evidence about this was not very clear.
[14] Ms Jones maintains that she was not told of any specific allegations against her, other than the reference to Mr Lunt. Mr Angyalffy and Mr Lewis disagree. The meeting on 8 April 2021 was the last conversation Mr Angyalffy and Mr Lewis had with Ms Jones prior to dismissal – so this point of disagreement is important.
[15] I am inclined to accept Ms Jones’ evidence that she was not told of any specific allegations in the meeting on 8 April 2021. The allegations/complaints made to Mr Angyalffy and Mr Lewis before the meeting were not particularly specific and Mr Lewis was due to start an investigation into the allegations the next day. Moreover, Ms Jones’ strong personality meant that (1) if they had raised specific allegations she would have provided immediate responses and would have described those responses in her evidence and (2) after raising generalised allegations, and when the conversation became more difficult, Mr Angyalffy and Mr Lewis most probably deferred revealing specifics for another day.
[16] One consequence of the meeting was that Mr Angyalffy decided that Ms Jones could not continue at the Randwick Barracks. Ms Jones forcefully defended the generalised allegations which unfortunately had the effect of steeling Mr Angyalffy’s conviction that the allegations were correct. His evidence was clear in this regard that Ms Jones was “terminated” from “her position at Randwick Barracks” at the meeting on 8 April 2021.
[17] Ms Jones was also adamant that she was not told on 8 April 2021 that she was finishing at Randwick. She said that when other employees from Randwick had been dismissed they were immediately escorted from the premises and their baseline (defence) pass was taken. After the meeting Ms Jones was not required to hand in her baseline pass. Ms Jones agreed that when she drove her car off the site that day Mr Lewis followed in his car – but her recollection was that he only did so because he had forgotten his own pass. Mr Angyalffy and Mr Lewis gave evidence that Mr Lewis intentionally followed Ms Jones off the base because they were both concerned that Ms Jones might not directly leave and that she might instead cause trouble on her way out.
[18] Ms Jones was told on 8 April 2021 that Mr Lewis would be holding a staff meeting on 9 April 2021 regarding the allegations raised against her and that there would be a further discussion with her in the following week.
[19] Mr Lewis organised a staff meeting for 10:00am on 9 April 2021. At approximately 9:30am Ms Sloss gave Mr Lewis a letter formalising the allegations of bullying and harassment against Ms Jones. The typed words of the letter were as follows:
“To City Clean Management,
The supervisor at Randwick Army Barracks Barbara Jones is rude, spiteful, nasty unhelpful and a bully. She constantly belittles staff, gossips about staff, and discusses staff’s private information with others for her own amusement. The use of abusive condescending language is often deployed to intimidate staff all of which helps create a hostile work environment. The supervisor even makes obscene gestures behind staff members she dislikes back when turned. She often express her distain for BGIS, defence staff and even city clean management. She also seems to fixate on one person at a time channelling all her energy on setting them up for failure and going out of her way to make working at Randwick Army Barracks unpleasant for them and those associated with them.
The signatures below are all the staff that feel that the hostile work environment must stop and can only be stopped if Barbara Jones is removed as a Supervisor.”
[20] The meeting commenced at 10:00am and Mr Lewis addressed the staff. His description of the meeting was as follows:
“Soon after arriving at the City Clean cleaners office Kylie Sloss handed me a letter raising all the issues she and Kerry had raised to formalise the allegations of Bulling and Harassment against Barbara. The meeting started at 10am, My opening statement was to explain why the company was holding a meeting and I went on to say "The company has zero tolerance to Bullying and Harassment in the work place as per our Policy and it was sad that allegations of Bulling and Harassment have been raised by two members of staff against the Supervisor Barbara. I went on to say that I was there to investigate the allegations as the company takes this very seriously . You all have a responsibility to report Bullying and Harassment even if you were a witness to it or you are the victim. By doing nothing you are just as guilty as the person Bullying and Harassing and allowing them to get away with it. You have here today two very brave staff members who have come forward and have a statement of allegations . What I like you to do is discuss amongst yourselves the allegations raised in the statement. I will walk away give you some time to consider the written statement because I don't want to be seen to influence any decisions made. I returned 15 minutes later and was shocked at the out come of the meeting as 11 of the 12 staff members present signed the statement letter stating a range of Bullying and Harassment against staff. I sat down in the office preparing to call Adam when Diane came into the office and said I didn't sign it, l immediately said as is your democratic right. I didn't see any of those allegations she has always treated me really well. I replied 11 people had voiced their view and now this meeting will be reported to the boss.”
[21] The “Diane” referred to is Ms Dianne Pedemont, a member of Ms Jones’ team. Ms Pedemont provided a statement and gave evidence at the hearing in support of Ms Jones. Her evidence was that she was not taken aside by Mr Lewis to discuss any issues that she may have had with Ms Jones and she was surprised that Ms Sloss’ statement had been prepared before the meeting. Ms Pedemont’s evidence also includes the following:
“There were a few staff members that didn't really understand what the statement was about and asked me to explain it to them.
As we were discussing the statement, we were interrupted by a certain staff member who was actually taking the statement around to staff with a pen, asking them "have you signed this yet?" .
I feel that some staff then felt some pressure to sign the statement, as they were saying to me, they weren't going to sign the statement, but when it was put in their faces, they ended up signing the statement.”
[22] Ms Pedemont’s evidence added to my own concerns about the meeting and about the conclusions, if any, I can draw from the signed statement/petition. The “certain staff member” referred to by Ms Pedemont was Ms Sloss.
[23] Ms Sloss gave evidence in the proceedings and acknowledged that she wrote the statement signed by many of the staff. It is clear by the typed words “The signatures below are all the staff that feel…” that Ms Sloss prepared the document as a petition. At the meeting Ms Sloss says that she told everyone “up to you, if you want to sign the statement” and that when Ms Pedemont refused to sign Ms Sloss said to her “that’s fine, you don’t have to.”
[24] The process overall was very poor and cruelled any chance Ms Jones had of continuing in employment at the Randwick Barracks. Ms Jones was a supervisor. Mr Lewis called a meeting of all of Mr Jones’ subordinates to announce that a complaint had been made and invited others to join in the complaint. This undermined any authority Ms Jones had with her co-workers and was so disrespectful to her that it made her position terminal. The employees who attended the meeting would properly have understood that Ms Jones no longer had the support of City Clean’s management.
[25] Secondly, at the meeting Mr Lewis suggested that any witness or victim of harassment was “just as guilty as the person bullying and harassing” if they do nothing. I am happy to assume that Mr Lewis’ intention in speaking to staff in this way was to overcome any reluctance or fear of reprisal, but the danger in doing so was that some or all of the staff felt pressure to put their name to a complaint when they would not otherwise have done so. As a result I have to be sceptical that at least some of the employees who signed the petition did so because of the pressure applied by Mr Lewis rather than because they agreed with the statement itself.
[26] Thirdly, the statement/petition was in very general terms, using some complex language and phrases such as “belittles staff”, “abusive condescending language”, “deployed to intimidate staff”, “hostile work environment”, “obscene gestures” and “distain”. The statement contains conclusions and assertions rather than actual allegations and assumes that Ms Jones acted with bad intentions. Many of the cleaners at Randwick Barracks are from non-English speaking backgrounds. I cannot assume that every staff member who signed the petition understood let alone agreed with every part of the typed statement. Even if each staff member understood each word of the petition, it is unlikely that the terms used would mean the same thing to each person.
[27] Fourthly, Mr Lewis addressed the staff and then told them to “discuss amongst yourselves the allegations raised in the statement”. Leaving the staff in an open forum to discuss the allegations probably so contaminated the investigation process that even if Mr Lewis had then collected individual statements from each staff member, the individual statements would be of little value because each person’s recollection would be affected by hearing each other person’s recollection.
[28] Mr Lewis reported the morning’s events to Mr Angyalffy, obviously including the fact that 11 of 12 staff signed the statement/petition prepared by Ms Sloss. Mr Angyalffy was on leave that day but Mr Lewis’ report was so concerning to Mr Angyalffy that he decided to immediately terminate Ms Jones’ employment.
[29] At lunchtime on 9 April 2021 Mr Angyalffy dismissed Ms Jones by email. Ms Jones says that she never received the email. Putting aside the question of precisely when the dismissal was effective, I am satisfied that the email sent by Mr Angyalffy on this day initiated the termination of Ms Jones’ employment. I will therefore consider the fairness of the dismissal, including substantive and procedural fairness, by reference to Mr Angyalffy’s decision to initiate the termination on 9 April 2021 by email.
[30] In his email Mr Angyalffy wrote:
“Further to our meeting yesterday, where you were terminated from your Supervisor role at Randwick Barracks, we have conducted further investigation this morning and have decided that we have no alternate options, but to terminate you for serious misconduct, and given the circumstances, we are unable to offer you any alternate positions.
As discussed yesterday, some very serious accusations were levelled against you, by numerous staff. We have had 10 staff now in total who have come forward about the bullying, harassment and intimidating behaviour and what you had been subjecting them too, including belittling staff and discussing staff’s private information as a form of amusement.
…
Although we had already discussed, at length, yesterday the circumstances and our original decision, I’m more than happy for you to still come to our office on Tuesday at 9am, to discuss our decision and answer any questions you may have, as well as for you to return your uniforms, pass and any other items belonging to City Clean.”
[31] In the afternoon of 9 April 2021 Ms Jones went to her GP about her emotional health. She says:
“… as I had previously been to see him on 24/02/2021 which I just had a couple of days off on a normal Medical Certificate regarding the stress with this company because i was there to see him again due to stress he suggested I should take some time off, he was going to give me a normal Medical Certificate, but I asked for a Work Cover Certificate as I have seen how the Respondent can terminate people when they are on sick leave or not at all often using the phrase "Gross Misconduct" which increased my anxiety, stress and depression.”
[32] A copy of a Workcover certificate was sent to City Clean’s office on 9 April 2021 however it was largely ignored because, as City Clean asserts, Ms Jones had already been dismissed by the time it was received.
[33] At the hearing Mr Angyalffy did not resile from the proposition that Ms Jones’ employment was terminated on 9 April 2021 and argued that the meeting on Tuesday 13 April 2021 was Ms Jones’ opportunity to respond to the allegations against her and to ask questions about her dismissal. Ms Jones did not attend City Clean’s office as invited.
[34] Over the next fortnight City Clean tried to make contact with Ms Jones on several occasions to retrieve her baseline pass. Ms Jones declined to take Mr Angyalffy’s calls. Ms Jones says that she did not know that she had been dismissed (because she says she did not receive the email of 9 April 2021), that she was “on a WorkCover certificate” during this time, and that the messages received were “threatening, intimidating and bullying comments.”
[35] Ms Jones pursued a workers compensation claim and City Clean’s insurer accepted liability.
[36] On 26 April 2021 Mr Angyalffy sent a further email to Ms Jones in the following terms:
“As you are well aware, there was a meeting between yourself, Richard and myself on Thursday 8th April where we informed you of some very serious accusations levelled against you by numerous staff. You were at this meeting informed that your position at Randwick was not tenable and that you were being immediately terminated from your position at Randwick. I asked you to stay away from Randwick and all staff on Friday so that we could properly further investigate circumstances of accusations, as you requested, as I was going to be away till Tuesday, you were to come in on Tuesday morning 9am to discuss your future and to see if we would be able to offer you any other positions, elsewhere within the company.
On Friday 9th April, Richard held meetings with all staff at Randwick in which 10 out of 11 staff lodged formal complaints of very serious nature against you, including providing a signed statement. Due to the serious nature of your misconduct, I sent you an email on Friday the 9th confirming the termination of your employment for serious misconduct and that we were in no position to offer any alternate employment opportunities due to the serious nature of your misconduct. I noted in the email that I would still be happy to meet you at Kuttabul on Tuesday the 13th to answer any questions, if you so wanted. You were officially verbally terminated on the 8th April and you received written confirmation of your termination on the 9th April, prior to you trying to seek Workers Compensation against us.
I also tried to call you numerous times, on Saturday the 10th and Sunday the 11th, and left messages on your phone. You did not return any of my messages or attend on Tuesday the 13th April at 9am.
You were obviously well aware of the above situation, as why else would you contact AGSVA to ask them for an extension to return your pass, without even discussing with us first.
On another note, your claim for Workers Compensation is frivolous and you cannot claim for Workers Compensation just because we summarily terminated your employment for serious misconduct. Also, at the time you went to the doctor (3pm 9/4/21) to claim Workers Compensation, you weren’t employed by us.”
[37] Ms Jones submits that when received this email on 26 April 2021 it was the first time she became aware that she had been dismissed.
Consideration - harsh, unjust or unreasonable
[38] Section 387 of the Fair Work Act 2009 (Cth) (FW Act) requires me to take into account the following matters in determining whether Ms Jones’s 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.
[39] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 1 I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[40] To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 2 and should not be “capricious, fanciful, spiteful or prejudiced.”3 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.4
[41] City Clean treated Ms Jones’ conduct as serious and wilful misconduct and dismissed her without giving her any warnings. In Sydney Trains v Gary Hilder (“Hilder”) the Full Bench summarised the well-established principles for determining such matters 5:
“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.”
[42] Bullying and harassment of co-workers is generally regarded as a valid reason to dismiss a person from their employment. Ms Jones was dismissed because City Clean formed the view that she had engaged in bullying and harassment of staff under her supervision.
[43] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.6 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 7
[44] The first task is to determine from the evidence before me whether City Clean has established that the alleged misconduct in fact occurred.
[45] There is very little direct evidence that establishes that Ms Jones engaged in bullying or harassing conduct. City Clean led evidence of the fact that Ms Sloss and Ms Gordon made various allegations against Ms Jones, and that 11 employees signed a petition. Ms Sloss gave evidence in the proceedings but only about the fact that she raised a complaint, that she wrote the petition and about the process by which the petition was signed by employees. Importantly, Ms Sloss did not give any direct evidence of bullying behaviour by Ms Jones. As referred to above, the petition drafted by Ms Sloss contains almost no detail about any specific incidents or specific behaviour by Ms Jones. For example, Ms Sloss’ petition refers to Ms Jones allegedly discussing private information of staff members “with others for her own amusement”. There is no evidence from Ms Sloss, or anyone, about any specific instance where Ms Jones discussed private information about a named staff member, let alone any evidence that could support Ms Sloss’ opinion that Ms Jones discussed this information for her own amusement. Similarly. Ms Jones was said to have used “abusive condescending language” but City Clean led no evidence through Ms Sloss or anyone, of what words were said that were abusive, or evidence of the context in which the words were said that meant that the words were abusive and/or condescending.
[46] The Commission is required to perform its functions in a manner that is fair and just and quick, informal and avoids unnecessary technicalities (per s.577 of the FW Act). The Commission must also act in a judicial manner, observing procedural fairness in carrying out its functions.8
[47] City Clean led evidence of the groundswell of allegations against Ms Jones but needed to provide direct evidence of the alleged bullying conduct itself. This is not a mere technical formality; it is an important aspect of how the Commission must act fairly and justly. Ms Jones must have a fair opportunity to defend the allegations against her and I must fairly deliberate her claim based only on the evidence before me.
[48] There was some direct evidence from employees who worked under Ms Jones and snippets of evidence of conduct that could possibly constitute bullying. Under cross examination by Ms Jones, who represented herself, those witnesses were asked about the level of interaction Ms Jones had with other employees over the course of the working day and the opportunities that Ms Jones had to engage in bullying conduct to the extent that she was inclined to do so. From this evidence one can see that there was in fact very little contact between staff during the working day.
[49] Ms Boccan signed the petition, signed a witness statement and gave evidence at the hearing. Her signed statement includes the following:
“I have personally witnessed Barbara's Bullying and harassment, including one time where Mick came up to her while I was with her and asked her a simple question, to which she put her hand up and pretended to bang her head against a wall.
Numerous times, Barbara said to me regarding Mick "how dumb is he"
On another occasion, Barbara and I were outside the office having a cigarette, Mick walked past us into the office to sign out. Then as he walked back outside to leave, as he was walking away, Barbara turned towards him and stuck her middle finger up at him.
Barbara would take photos of Mick signing off 5 minutes early.”
[50] Quite obviously this is direct evidence of unsatisfactory conduct by Ms Jones. Ms Boccan was cross-examined about her evidence and agreed that there were only limited opportunities for Ms Boccan to observe Ms Jones’ conduct towards other employees. Ms Boccan does not allege that Ms Jones engaged in any bullying conduct towards her personally, although she did say that she felt intimidated by the way Ms Jones spoke to other staff when they signed out at the end of their shift.
[51] I accept Ms Boccan’s evidence in this regard but cannot find that on its own this conduct constitutes a valid reason for dismissal. It is not acceptable conduct by Ms Jones and if it persisted after a formal warning then it might be a valid reason for dismissal.
[52] Ms Lei signed a witness statement and gave evidence in the proceedings. Her witness statement focused on the meeting on 9 April 2021, the signing of the petition, and also included a statement that “[Ms Jones] has sworn at me before.” In cross-examination Ms Lei indicated that there was only one occasion that Ms Jones swore, and it was on her last day of employment. Ms Lei signed the petition but did not give any evidence of any behaviour by Ms Jones that she personally observed, except for the single incident of swearing on Ms Jones’ last day.
[53] There is a small amount of evidence of bullying and harassment-type conduct of the kind that could form the basis for a valid reason to dismiss Ms Jones. However, I am not satisfied from the evidence led that there was a valid reason for dismissal related to Ms Jones’ conduct for the purposes of s.387(a) of the FW Act.
[54] This finding should not be understood to minimise the complaints made by Ms Sloss, Ms Gordon or any of the other workers at Randwick Barracks. Nor should it be understood to minimise the problematic nature of bullying in workplaces. It is quite possible that the complaints against Ms Jones were reasonable and well founded and that Ms Jones did engage in widespread bullying behaviour. The fundamental difficulty in this matter is that there is not sufficient evidence for me to fairly assess whether this is the case or not. As such, I cannot find that bullying and harassment occurred on the evidence before me.
Was the Applicant notified of the valid reason?
[55] Section 387(b) requires me to take into account whether Ms Jones “was notified of that reason.” Sections 387(b) and (c) direct the FWC’s inquiry to matters of procedural fairness. In general terms a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case. 9
[56] In context, the inquiry to be made under s.387(b) is whether the employee was “notified” of that reason before the employer made the decision to terminate. 10 The reference to “that reason” is a reference to the valid reason(s) found to exist under s.387(a)11 and the reference to being “notified” is a reference to explicitly putting the reasons to the employee in plain and clear terms.12
[57] Because I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances. 13
[58] I note that the email sent to Ms Jones on 9 April 2021 advising that her employment was terminated did not contain any details of the alleged conduct other than referring to the general character of the alleged behaviour.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[59] As discussed above, Ms Jones was not given any proper opportunity to respond to the allegations against her. No details of the allegations were put to her at the meeting on 8 April 2021. On 9 April 2021 Mr Angyalffy decided to terminate Ms Jones’ employment without any further discussion with her – which means that none of the information obtained by Mr Lewis when he spoke to employees on 9 April 2021 was put to Ms Jones at all.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[60] This factor is not a relevant consideration in this matter.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[61] As the dismissal did not relate to unsatisfactory performance, strictly speaking this factor is not relevant to the present circumstances.
[62] I do note that Mr Lewis says that he spoke to Ms Jones during her employment about being “abrasive” with staff and that he had discussed with her how they were both “old school” and needed to be careful how to react to staff. These conversations were not warnings in the sense that Ms Jones was not told that her employment was at risk if the behaviour continued.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[63] This factor is not a relevant consideration in this matter.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[64] In this matter the absence of dedicated human resource management specialists or expertise in City Clean’s enterprise did significantly impact on the procedures followed by City Clean in dismissing Ms Jones. City Clean is large enough to have a sizeable workforce but not large amount to have a dedicated human resource management function. Mr Angyalffy and Mr Lewis responded in good faith to a significant complaint made by Ms Sloss and Ms Gordon. They acted quickly to convene a meeting with the two complainants, and then moved swiftly and appropriately to remove Ms Jones from the workplace in order to investigate the matter. When they met with Ms Jones to suspend her employment it was sufficient for them to only outline the allegations in broad terms because the meeting was intended to be a pre-cursor to a second meeting at which the allegations in full would be put to her after the investigation was complete.
[65] Where City Clean went wrong, and where one would hope a dedicated human resource management specialist would have avoided speaking to the staff as a group and allowing/facilitating the creation of the petition, and avoided rushing to dismiss Ms Jones because so many staff had signed the petition. Neither Mr Angyalffy nor Mr Lewis should have been too surprised to learn that 11 staff signed the petition – Ms Sloss and Ms Gordon had told them two days before that there was a “crisis” and that almost all the staff had been bullied and had had enough.
What other matters are relevant?
[66] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. There were no other significant matters raised by the parties for consideration.
Finding - unfairly dismissed
[67] I have made findings in relation to each relevant matter specified in section 387. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal (per s.385).
[68] I am satisfied that Mr Angyalffy did what he thought was the right thing to protect his staff from bullying and harassment – the difficulty is that he didn’t do enough to protect Ms Jones from being treated unfairly. These two objectives are not mutually exclusive: Mr Angyalffy could have taken effective steps to prevent possible bullying action from continuing, including possibly dismissing Ms Jones, but also taken steps to ensure that Ms Jones had a reasonable opportunity to respond to the allegations against her.
[69] It is possible that once the matter was fully investigated City Clean might have found that the conduct was so serious that Ms Jones could not remain in the business. It is equally possible that City Clean might have found that the behaviour staff describe as bullying is actually appropriate and/or rigorous supervision. Ms Jones’ responses to specific allegations could have satisfied City Clean that she could remain in employment, or could have shown that she was beyond redemption, or perhaps even shown that Ms Jones was the victim of a vendetta by colleagues.
[70] On the information collected by City Clean prior to dismissal, and the evidence before the Commission, neither City Clean nor I can say which of these outcomes is more probable than any other. Ms Jones is understandably aggrieved that they played her out like that.
[71] In the circumstances I find that the dismissal of Ms Jones was harsh, unjust and unreasonable.
Remedy - General
[72] Ms Jones made an application for an order granting a remedy under section 394, was a person protected from unfair dismissal and was unfairly dismissed within the meaning of section 385 of the FW Act. I can order Ms Jones’s reinstatement, or the payment of compensation to Ms Jones, subject to the FW Act.
[73] Ms Jones does not seek re-instatement and I am separately satisfied that it would not be appropriate to order re-instatement in any event.
[74] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. The question whether to order a remedy remains a discretionary one. 14
[75] Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion. 15
[76] Ms Jones seeks compensation. In all the circumstances, I consider that an order for payment of compensation is appropriate to compensate Ms Jones for financial losses he has suffered arising from being unfairly dismissed.
Remedy - Compensation
[77] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the applicant in lieu of reinstatement including:
“(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.”
[78] I will consider these factors in sequence.
The effect on the viability of the employer’s enterprise
[79] There is no dispute and I am satisfied that an order for compensation would not have an effect on the viability of the employer’s enterprise (s.392(2)(a)).
The applicant’s length of service;
[80] Ms Jones’ length of service (s.392(2)(b)) was quite short, less than one year, which favours a lower amount of compensation.
Remuneration likely to have been earned but for the dismissal
[81] In determining the remuneration that Ms Jones would have received or would have been likely to receive if she had not been dismissed (s.392(2)(c)) I must consider the likelihood of the employment continuing, and the likelihood that the employment would have been terminated at some time by another means. I must make findings of fact in this regard, to be able to assess the amount of remuneration Ms Jones would have received or would have been likely to receive. 16
[82] If Ms Jones had not been dismissed on 9 April 2021 her employment was unlikely to have continued for any more than a few weeks. City Clean was obliged to investigate the complaint received from Ms Sloss and Ms Gordon. City Clean should have taken the time to properly investigate the allegations, and separately interviewed relevant staff as part of an investigation process. I accept the distinct likelihood that the bullying allegations would have been the start of the end of Ms Jones’ employment.
[83] Ms Jones says she did not receive the email from Mr Angyalffy on 9 April 2021 dismissing her from her employment. In the afternoon of 9 April 2021 Ms Jones saw her GP who provided a Workcover Certificate indicating that she was not fit for work because of her “? Adjustment disorder (sic)”. Ms Jones made a workers compensation claim shortly thereafter and her claim was apparently approved on 29 June 2021. I infer from the approval on 29 June 2021 that Ms Jones was medically unfit from 9 April 2021 until at least 29 June 2021. Neither party led specific evidence in this regard.
[84] It is quite probable that if Ms Jones had not been dismissed on 9 April 2021, but took stress leave on workers compensation, that she would have returned to work earlier than 29 June 2021. The Workcover certificate dated 9 April 2021 indicated that Ms Jones was unfit until 5 May 2021. One would hope that some action would have been taken in May 2021 to improve the chances of Ms Jones returning to work.
[85] I find that it is reasonably likely that Ms Jones would have returned to work by the end of May 2021. It is similarly likely that Ms Jones would have then faced an investigation by City Clean into the allegations against her.
[86] For the purposes of s.392(2)(c) I find that Ms Jones’s employment is likely to have continued until the end of July 2021 while the investigation played out and while she was given a further opportunity to work at a different site. Section 392(2)(c) requires me to quantify the remuneration Ms Jones was likely to earn over this period. For present purposes I find that she was likely to receive her ordinary wages and benefits for the full period from 9 April 2021 until 31 July 2021.
Efforts to mitigate the loss
[87] There was little evidence of Ms Jones’ efforts to mitigate her loss (s.392(2)(d)). I note that Ms Jones was medically unfit to work for City Clean for the majority of this period and I am prepared to accept that her medical condition is likely to have hampered her attempts to mitigate her loss.
Remuneration earned since dismissal
[88] Knowing that Ms Jones’s workers compensation claim was approved on 29 June 2021 I will assume that the amount of remuneration earned by Ms Jones since the dismissal (s.392(2)(e)) included weekly benefits under workers compensation legislation. At this stage it is not necessary for me to know precisely how much Ms Jones received in workers compensation weekly benefits after her claim was approved.
Likely income after judgment
Any other matter that the Commission considers relevant.
[89] The other factors in s.392(2)(f) and s.392(2)(g) do not arise for consideration do not arise for consideration in this matter.
Calculation of Compensation
[90] The FWC’s well-established approach to the assessment of compensation under s.392 is to apply the “Sprigg formula” 17, viz:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate her or her loss may lead to a reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
[91] The various factors that the FWC must consider under s.392 can be conveniently melded into the above 4 elements of the Sprigg Formula.
Sprigg Formula – Step 1
[92] In considering the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (s.392(2)(c)), taking into account Ms Jones’s length of service (s.392(2)(b)) as one factor informing the estimate of how long the employment would have continued, I find that Ms Jones would have continued receiving her full weekly remuneration until the end of July 2021.
Sprigg Formula – Step 2
[93] In considering the remuneration received since dismissal (s.392(2)(e)) and s.392(2)(f)) I find that Ms Jones received weekly payments under workers compensation legislation for the full period until at least 29 June 2021 and most likely for a period thereafter.
[94] It is not possible on the evidence to date to calculate the difference between the amounts in steps 1 and 2. Subject to considering Steps 3 and 4 below I will make orders that will require the differential between what Ms Jones would have earned and what she in fact received to be calculated by the parties and paid by City Clean.
Sprigg Formula – Step 3
[95] In considering whether there are contingencies that might cause the compensation order to be discounted I have taken into account the effect of an order on the viability of City Clean’s business (s.392(2)(a)), Ms Jones’s length of service (s.392(2)(b)), attempts to mitigate her loss (s.392(2)(d)) and any other relevant matter (s.392(2)(g)).
[96] Given that the differential between steps 1 and 2 is not likely to be large, I am not inclined to discount the amount further because of the contingencies identified above.
Sprigg Formula – Step 4
[97] I have considered the impact of taxation but have settled on a methodology to calculate a gross settlement sum and leave taxation for determination.
[98] In this matter the amount of the order for compensation is not to be reduced on account of misconduct (per s.392(3)) and the cap on compensation in s.392(5) of the FW Act has no impact.
[99] Having applied the Sprigg Formula, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.” 18
[100] It may be that by application of the above considerations there is no differential to be paid. It is possible that Ms Jones received at least her ordinary time wages in full because of her workers compensation claim. If this is the case then I am satisfied that above approach has delivered an appropriate outcome because it will necessary be the case that Ms Jones did not actually lose out financially because of the dismissal (and the acceptance of her workers compensation claim).
Orders
[101] I will make orders that City Clean pay compensation to Ms Jones in accordance with the methodology described above. 19 I will include within the order directions to facilitate the calculation of the compensation to be paid and the resolution of any disagreement about the calculation.
DEPUTY PRESIDENT
Appearances:
Ms B Jones, Applicant
Mr A Angyalffy, for the Respondent
Hearing details:
2021.
Sydney (By Video using Microsoft Teams)
August 10, 26.
Printed by authority of the Commonwealth Government Printer
<PR735700>
1 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia LtdPR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].
2 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
3 Ibid.
4 Commonwealth of Australia (Australian Taxation Office) v Shamir [2016] FWCFB 4185 at [46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
5 Sydney Trains v Gary Hilder[2020] FWCFB 1373 at [26] citing Gelagotis v Esso Australia Pty Ltd[2018] FWCFB 6092 at [117]; Titan Plant Hire v Van Malsen[2016] FWCFB 5520, 263 IR 1 at [28]; Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [25]- [35].
6 Edwards v Justice Giudice [1999] FCA 1836 at [7].
7 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at [23]-[24].
8 See Galloway v Molina and Zhai [2021] FWCFB 5419 at [22] citing Appeal by Construction, Forestry, Mining and Energy Union (2014) 240 IR 254, [2014] FWCFB 174 at [22]; Coal and Allied Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at 83; Kioa v Minister for Immigration & Ethnic Affairs [1985] HCA 81; (1985) 62 ALR 321 at 347 per Mason J; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd [1989] HCA 41; (1989) 167 CLR 513; 29 IR 148.
9 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137at 151 [70] citing FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Kioa v West (1985) 159 CLR 550; Annetts v McCann and others (1990) 170 CLR 596
10 Sydney Trains v Trevor Cahill[2021] FWCFB 1137 at [60], Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137at 150 [67]-[69].
11 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [155].
12 Sydney Trains v Trevor Cahill[2021] FWCFB 1137 at [60] citing Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 and Previsic v Australian Quarantine Inspection Services [1998] AIRC 1371 (Print Q3730).
13 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762 at [46]-[49].
14 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 at [9].
15 Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171 at [5]-[7].
16 He v Lewin (2004) 137 FCR 266, (2004) 133 IR 217, [2004] FCAFC 161 at [58].
17 Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, [1998] AIRC 989. See also Bowden v Ottrey Homes Cobram and District Retirement Villages (2013) 229 IR 6; [2013] FWCFB 431 and Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206 at [16].
18 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206 at [17] citing Smith v Moore Paragon Australia Ltd (2004) 130 IR 446,[2004] AIRC 57; (PR942856) at [32].
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