Belinda Paris v Cox Purtell Staffing Services Pty Ltd T/A Cox Purtell
[2016] FWC 7276
•30 NOVEMBER 2016
| [2016] FWC 7276 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Belinda Paris
v
Cox Purtell Staffing Services Pty Ltd T/A Cox Purtell
(U2016/2673)
DEPUTY PRESIDENT BOOTH | SYDNEY, 30 NOVEMBER 2016 |
Application for relief from unfair dismissal - conduct
[1] Ms Belinda Paris was employed by Cox Purtell Staffing Services Pty Ltd (Cox Purtell) from April 2015 until she was dismissed on 27 May 2016 on grounds of serious misconduct.
[2] Cox Purtell is a boutique recruitment company providing recruitment and consulting services in 6 specialist areas, namely, Business Support, Accounting, Legal, Marketing, Insurance and Government.
[3] Ms Paris was employed as Principal Recruitment Consultant - Accounting and Finance, reporting to Mr Alan Claire.
[4] Ms Paris undertook her role by supporting Cox Purtell clients in recruiting staff by creating a pool of candidates for a particular role then reviewing and short listing such candidates before submitting them to the client to choose from.
[5] One such client was George Weston Foods. Cox Purtell dismissed Ms Paris because they believed that Ms Paris had been dishonest and mislead this client and had been dishonest and mislead them.
[6] Ms Paris believes she was unfairly dismissed and has made an application to the Fair Work Commission for an unfair dismissal remedy.
[7] Ms Paris asks the Commission to make this finding and order Cox Purtell to pay her compensation. She is not seeking reinstatement.
[8] At the hearing of the matter on 13 October 2016 Ms Pariswas represented by a friend, Mr Paul Williams and with permission Cox Purtell was represented by Mr Tom Brett, a solicitor from FCB Workplace Law.
[9] Evidence was given by Ms Paris on her own behalf. Mr Paul Williams provided a witness statement in support of Ms Paris and was not required for cross examination.
[10] Mr James Purtell, Managing Director of Cox Purtell was required to give evidence upon application by Ms Paris for an Order requiring a person to attend before the Fair Work Commission.
[11] Evidence was given for Cox Purtell by Mr Alan Claire, Recruitment Services Director and Ms Sarah McLennan, Director of Client Engagement.
[12] Closing written submissions were received from Ms Paris on 3 November 2016 and Cox Purtell 14 November 2016 with submissions in reply from Ms Paris on 21 November 2016. My Chambers also received emails from Mr Williams and Ms Paris on 23 November 2016. Their contents were of a personal nature and not relevant to my consideration of this matter.
[13] The central issue between the parties is whether Ms Paris had been dishonest and misleading and whether this was a valid reason for her dismissal.
[14] In the case of a dismissal on grounds of misconduct it is necessary for the Commission to make a finding about whether the conduct alleged actually happened. 1
[15] This is the case whether the conduct is said to justify dismissal with or without notice. The Commission is not required to consider whether the conduct was serious misconduct, rather whether the conduct occurred and, if so, whether it provided a valid reason for dismissal. 2
[16] For the reasons given below I have decided that most of the relevant alleged conduct occurred, that Cox Purtell had a valid reason to dismiss Ms Paris and that her dismissal was not otherwise harsh, unjust or unreasonable. I have decided that her dismissal was not unfair. Her application is dismissed.
Preliminary matters
[17] Before I get to the central issue there are some initial matters that I must address arising from sections 396 and 385 of the Fair Work Act 2009 (Cth) (the Act).
[18] I have considered subsections 396 (a) to (d) of the Act and I conclude that there is no impediment to me considering the merits of Ms Paris’s case because:
(a) Ms Paris made her application within the period required in subsection 394(2)(a) of the Act, that is, within 21 days after the dismissal took effect.
(b) Ms Paris was a person who was protected from unfair dismissal under section 382 of the Act at the time of her dismissal because:
- she had completed a period of employment with Cox Purtell (nearly 13 months) that is longer than the minimum employment period. (The minimum employment period for an employer that is not a small business is 6 months), and
- her annual rate of earnings at the time of dismissal of $90,000 plus superannuation was less than the high income threshold.
- Cox Purtell is not a small business employer. At the time of Ms Paris’s dismissal Cox Purtell employed “about 20 people” described as “internal employees” 3 along with an unidentified number of other people who are employees of Cox Purtell and are placed in the businesses of clients. Therefore the Small Business Fair Dismissal Code does not apply.
- There is no suggestion that Ms Paris’s dismissal was a case of genuine redundancy.
[19] I have also considered section 385 of the Act. It is common ground between the parties that Ms Paris’s employment was terminated at the initiative of Cox Purtell. That is, in the terms of subsection 386(1) of the Act, she was dismissed. As mentioned the Small Business Fair Dismissal Code does not apply and her dismissal was not a case of genuine redundancy. That being the case it remains for me to consider whether Ms Paris’s dismissal by Cox Purtell was harsh, unjust or unreasonable.
[20] In doing this I must take into account the factors contained in subsections 387(a) to (h) of the Act. These factors direct the Commission’s attention firstly to the substantive fairness of an employer’s decision to dismiss an employee, secondly to procedural fairness in the way in which the employer’s decision is made and carried out and thirdly to any other matters that the Commission regards as relevant to its consideration.
Conduct
[21] Before turning to these factors I must determine, on the balance of probabilities, whether the conduct complained of actually happened. It is important to appreciate that I am not deciding whether it was reasonable for Cox Purtell to conclude that the conduct occurred, but whether it did actually occur. 4
[22] The reasons advanced for Cox Purtell’s decision to dismiss Ms Paris were put forward at the outset of the hearing of this matter by Mr Brett as follows:
“Firstly, that the applicant engaged in misleading and dishonest conduct with respect to a key client on 5 May 2016 by way of email correspondence and the content of that email.
Secondly, the applicant was dishonest in the investigation interview with management of the respondent on 26 May regarding those earlier representations provided by the applicant to the respondent’s key client on 5 May.
Thirdly, that the applicant breached an express direction from management of the respondent on 26 May by speaking with a client of the respondent…
Finally… the respondent relies on conduct which has arisen after the applicant’s termination on 27 May with respect to the applicant’s conversation with Sally Matthews, a candidate for a prospective role.” 5
[23] I will consider the reasons above in turn.
Was Ms Paris dishonest, and did she mislead, Nicole James of George Weston Foods in the emails she sent on 5 May 2016?
[24] Ms Paris gave evidence that on Saturday 16 April 2016 she was working at home in very difficult circumstances. Her then partner was experiencing a serious health episode to the point of needing emergency services, the internet access in her bedroom where she was working was unreliable due to a broken range extender and her company issued laptop had crashed at least once. 6
[25] Her evidence was that on Friday 15 April 2016, the day before working at home, she had interviewed the last of three candidates that she was short listing for a role at George Weston Foods. 7 She said that she created a profile of the candidates on her laptop, recalls formatting them, writing a profile and sending the email to Nicole James.8 Nicole James was George Weston’s Foods representative for the purposes of the recruitment of this particular role. She was described by Mr Purtell in his evidence as a “key influencer” at George Weston Foods.9
[26] On 5 May 2016 at 10.40am Ms Paris sent Nicole James the following email:
“Good morning Nicole,
I was hoping to catch up with you to see where you are up to with the Shared Services team Leader role.
I sent the shortlist about 6-8 weeks ago and have left a few messages so not sure if the role is still vacant and the candidates are following me up for feedback.
It would be great to catch up with you when you have a moment.
Thanks and regards.
Belinda” 10
[27] The short list Ms Paris was referring to was the one she says was attached to the email she says she sent on 16 April 2016, 19 days earlier.
[28] At 10.58am on 5 May 2016 Nicole James replied to Ms Paris informing her that she had not received a short list:
“Hi Belinda
I never received a short list from you, can you please forward the original email you sent me?
Thanks” 11
[29] At 11.07am on the same day Ms Paris replied to Nicole James:
“That is really strange. I didn’t want to push as I know how busy you are
I sent it over to you a couple of days after we last spoke as I was working on them from home
I have the resumes ready to go but am just stepping into an interview.
You will have them by 12pm” 12
[30] At 11.27am that day Nicole James replied to Ms Paris acknowledging her email and asking her for the original email:
“Okay thanks
I would really like the original email as I need to log this issue with our IS team.” 13
[31] At 11.36am that day Ms Paris replied to Nicole James:
“No worries.
I have requested our outsourced IT Provider to try and retrieve it as we have it set that emails auto delete every Friday to save on storage space but as we are struggling to get them to set up our 5 new starters and it is my priority it may take a few days” 14
[32] At 12.02pm on 5 May 2016 Ms Paris sent another email to Nicole James attaching the three resumes she said she had sent on 16 April 2016.
[33] Asked what she did after sending the email on 16 April 2016 Ms Paris said she:
“went to my normal work and then left her for a couple of weeks, or a week or so, and then started following up”. 15
[34] Asked whether she had any concerns about the email in the period post 16 April 2016 she said she did not because she knew Nicole James was going on holidays. She said she had asked another of George Weston Food’s staff members about Nicole James’ whereabouts and was told she had been seen in management meetings and she was in meetings with her team with whom she had “issues”. 16
[35] Some time at the beginning of May 2016 17 Ms McLennan was reviewing Cox Purtell records concerning George Weston Foods and identified the exchange of emails between Ms Paris and Nicole James.18 Ms McLennan said she:
“was concerned that Belinda had not raised what was clearly an issue between her and one of Cox Purtell’s key stakeholders at a major client with anyone at the business.” 19
[36] Ms McLennan contacted Nicole James the same day to arrange a meeting which was scheduled for 25 May 2016. She conducted the meeting with Nicole James and gave evidence that she was told “I am appalled at the service I received …” 20 Ms McLennan said that she immediately met with Mr Claire and advised him of the complaint. Mr Claire gave evidence that he had been advised by Ms McLennan that the client:
“felt that they had not been looked after by Cox Purtell and we had not been honest in our dealings with them”. 21
[37] On 26 May 2016 Ms Paris attended a meeting with Mr Claire and Ms McLennan. Whether the email had been sent to Nicole James was one matter discussed in the meeting. Following this meeting Ms Paris and Mr Claire searched for the email to no avail. 22
[38] Cox Purtell contend that Ms Paris did not attempt to send the email on 16 April 2016 and that holding out to Nicole James that she had done so was dishonest and misleading.
[39] In response to the evidence of no record being found of the email being sent, Ms Paris says that she could only search for a record of the email having been sent on her iPhone because by the time she looked for the email on 26 May 2016 her laptop was in the possession of Cox Purtell. 23 Ms Paris says she had returned the laptop to Cox Purtell sometime prior to the meeting of 26 May 2016 at the request of Mr Claire in connection with new employees starting.24 However, in her evidence at the hearing Ms Paris said that prior to sending the CVs to Nicole James on 5 May 2016 at 12:02pm she had looked for the original email in her sent items and could not find it. 25
[40] Ms Paris told Mr Claire in an email on 26 May 2016 at 2.55pm that there was no record of the email in her “sent”, “outbox” or “deleted” items. 26
[41] The poor internet access and unreliable laptop 27 were suggested as explanations for the email not being received by Nicole James. Mr William’s corroborated Ms Paris’s account of her internet access difficulties on 16 April 2016.
[42] Ms Paris complained that Cox Purtell had not asked their supplier of information technology services, CMS, to search for the email. However she did give evidence that:
“anything that’s sent goes via Bullhorn although you do have to search for any sent emails, sorry, any received emails, sent emails are a little bit easier to find.” 28
[43] The evidence given by Mr Purtell was that the entire Cox Purtell data base was searched and that no email was found from 16 April 2016. Mr Purtell confirmed that the system worked such that any email that was sent was picked up by the server and put on the database. 29
[44] Mr Claire says that he also looked unsuccessfully for the email on the laptop that Ms Paris was using at the time she says she sent the email on 16 April 2016. 30
[45] Mr Claire gave evidence that he did not ask CMS to undertake a search using the Outlook 365 audit function because of the email he received from Ms Paris at 2:55pm on 26 May 2016. 31
[46] That email was sent by Ms Paris in reply to an email sent to her by Mr Claire at 2.47pm on the same day.
[47] The email sent by Mr Claire at 2:47pm on 26 May 2016 is as follows:
“Thanks Belinda,
Ok so you still have not answered question 1: Did you send CV’s on the 16th of April from your house or not! This is the Crux of the issue.” 32
[48] At 2:55pm Ms Paris replied to that email:
“No
I can’t find it in my sent, drafts or outbox so saying I did or even had it in my drafts is something I can’t back up” 33
[49] Mr Claire says he considered Ms Paris’s response of “No” in the first line of the above email to be a response to the question of whether the CVs were sent on 16 April 2016. He considered Ms Paris’s response meant the email had not been sent and he concluded that there was no point searching for it any further.
[50] In contrast, Ms Paris says Mr Claire should have read the email in the knowledge she was on medication and her response of “No” was in relation to whether she could find a record of the email being sent.
[51] Mr Purtell gave similar evidence to Mr Claire saying he took the email at face value. 34
The data base used by Cox Purtell to track work flow is called Bullhorn. A Bullhorn report for George Weston Foods was tendered by Cox Purtell at the hearing before the Commission. 35 This report related to the role that Ms Paris’s emailed to Nicole James about on 5 May 2016.
[52] Ms Paris gave evidence that she interviewed the candidates for the role over a period of two to three weeks, with the third candidate being interviewed on 15 April. 36 However the Bullhorn report records that the three candidates were interviewed on 12 April 2016.37 They were only recorded in the Bullhorn system as having been marked for submission to George Weston Foods on 5 May 2016 (in the case of one candidate) and 10 May 2016 (in the case of the other two candidates).38
[53] In response to the evidence in relation to the database Ms Paris says she had a “limited” understanding of the Bullhorn system used at Cox Purtell 39 and did not “always make efficient use” of it.40
[54] She suggested that this would explain why there was no record of her using Bullhorn in relation to any candidates for the George Weston Foods position on or around 16 April 2016. 41
[55] The weight of the available objective evidence is in favour of a conclusion that Ms Paris did not attempt to send the email on 16 April 2016. It is possible that it was sent, went astray and no record could be found of it. However I consider that it is more probable that it was not sent.
[56] No record of the email being sent could be found by Cox Purtell or Ms Paris. 42
[57] There was no record of Ms Paris logging onto the system on 16 or 17 April 2016. 43
[58] There was no evidence of Ms Paris accessing the relevant candidate’s resumes through the Bullhorn data base on or immediately before or after 16 April 2016. 44
[59] Bullhorn records Ms Paris accessing the data base for the purpose of formatting these resumes on 5 May 2016 and 10 May 2016. 45
[60] Ms Paris did not email Nicole James until 19 days after she says she sent the email of 16 April. I consider it implausible that in the light of the pressure Ms Paris was under on 16 April 2016 and her knowledge of the poor internet access, that she would not have emailed Nicole James sooner than 19 days later to see if the email had arrived at its destination. Ms Paris said that she had called and left messages but it is telling that when she did email Nicole James on 5 May 2016 she received a reply 18 minutes later.
[61] It follows that I find that Ms Paris was dishonest with and did mislead Nicole James in the emails of 5 May 2016 at 10.40am and 11:07am when she told Nicole James she had sent the short list “6-8 weeks ago” and “a couple of days after we last spoke” and in the email sent on 5 May 2016 at 12:02pm where she refers to resumes “originally submitted for the Shared Services Team Leader role” (my emphasis).
[62] Cox Purtell also contend that that statements made by Ms Paris to Nicole James in her email of 5 May 2016 at 11:36am were dishonest and misleading. Indeed the decision maker Mr Claire revealed he was more exercised about the way Ms Paris had conduced herself in the wake of the discovery that Nicole James had not received the email than with whether it had been sent.
[63] He said under cross examination by Mr Williams:
“my concern was that Belinda had told the client that our IT policy was to delete emails every week, and that our IT department were too busy to look for the email, and that she couldn’t resend the original email for those reasons. It was not whether or not the email was sent. It was her reaction after the mistake had arisen.” 46
[64] Three statements of significance were made in that email reproduced above. I will deal with each in turn.
I have requested the outsourced IT provider to try and retrieve it
[65] Ms Paris conceded under cross examination that she had not done so but maintained she intended to do so.
[66] She said:
“I forgot about this …” 47
[67] She also said that she did in fact ask a colleague, Christina (who was not called to give evidence) for the telephone number for CMS. However Ms Paris was discouraged from calling CMS by Christina, who Ms Paris says told her (in a manner which Ms Paris says was friendly banter):
“Bitch, don’t even think about it, we’ve got four new staff and one person moving into a new role, I will cut you.” 48
[68] Ms Paris also says she was too busy. In relation to contacting CMS she said she:
“would have done within the next couple of hours, had I not had 10 open roles and about 60 phone calls coming through on that day” 49
[69] She agreed that she had not made the request to CMS and that the statement to Nicole James that “I have requested our outsourced provider to try and retrieve it …” was not a truthful comment. 50 However she said it was easier to use the past tense because Nicole James was “difficult”.51 Ms Paris also says this approach was “easier” because of the “history” with Nicole James and her “personality”.52
[70] These reasons are contradictory. Ms Paris initially said she had forgotten to call the IT provider, however she also says she was discouraged by a colleague from doing so and then went on to say that she would have done so if she weren’t so busy.
[71] I find that this statement made by Ms Paris to Nicole James was dishonest and misleading. It is uncontroversial that Ms Paris had not asked CMS to search for the email at the time she typed these words. Her evidence that at the time she typed these words she intended to do so and it was easier to use the past tense with this client because she was “difficult” is blame shifting. It is also uncontroversial that she did not pursue CMS after she made this statement. Her evidence that she was dissuaded by her colleague and had other work to do is also blame shifting.
[72] She had from 5 May 2016 to 26 May 2016 when she met with Mr Claire and Ms McLennan to ask for CMS to look for the email but she did not do so. This sits uncomfortably with her position that Cox Purtell should have asked CMS to look for the email as part of their investigation.
We have set it that emails auto delete every Friday to save on storage space
[73] Ms Paris says that at the time she typed these words she mistakenly believed that this was the policy of Cox Purtell because she had worked for companies that had had such a policy.
[74] Ms Paris explains as follows:
“not thinking clearly, I mentioned that previous company’s email policy as the most recent one I had been given or worked under. This is not Cox Purtell’s email policy but I’ve never been given Cox Purtell’s email policy so I accidentally cited the first one that came to mind.” 53
[75] Ms Paris says that she worked under the previous policy for eight years. In relation to that previous policy Ms Paris says:
“we had issues with server space so we were requested that we delete all sent and deleted items on the Friday afternoon, to save on storage space” 54
[76] Under cross examination Ms Paris said that she did not misunderstand the Cox Purtell policy, however made her response under pressure and it was affected by her medical condition:
“It wasn’t a misunderstanding, it was when put under pressure and as you have requested a copy of my medical records it was my auto response when put under pressure.” 55
[77] When asked if she claimed that she made the response as a result of her medical condition Ms Paris stated:
“That and the fact that she’s an extremely difficult client to deal with.” 56
[78] Mr Claire gave evidence that in the meeting of 26 May 2016 Ms Paris admitted that she had made a mistake in thinking her emails had been auto deleted and that it wasn’t the case. 57
[79] While Ms Paris indicated in her email to Nicole James that emails were auto deleted each Friday, at hearing the policy Ms Paris described previously working under involved employees deleting their own sent and deleted items each Friday.
[80] Although Ms Paris had previously worked under different policies, Ms Paris had been employed at Cox Purtell for over 12 months by the time she wrote this email. It is implausible that she believed that it was the policy of Cox Purtell to auto delete emails each Friday. Nor is there any evidence that she had followed a policy of deleting all sent and deleted items each Friday while working for Cox Purtell.
[81] Further, as already mentioned in her evidence at the hearing Ms Paris in fact acknowledged that prior to sending the CVs to Nicole James on 5 May 2016 at 12:02pm she had looked for the original email in her sent items. 58 It is unlikely that if Ms Paris had actually thought that the policy of Cox Purtell was to wipe all emails from the system each Friday she would, only a very short time after sending the email of 11:36am to Nicole James, have checked her sent items for the missing email.
[82] It is also significant that although Ms Paris claims to have made a mistake under pressure, she did not seek to correct the error by informing Nicole James of the correct email policy at any subsequent time. Instead, it seems probable that by advising Nicole James that the request “may take a few days” Ms Paris sought to delay further requests for the original email.
[83] There is no evidence that Ms Paris was affected by a medical condition to the extent that she could inadvertently make such an obvious error, particularly as her response was in a written form meaning she had an opportunity to consider and review it prior to sending the email to Nicole James.
[84] It is more probable than not that Ms Paris concocted this statement in an attempt to cover up her failure to send the original email. I find that this statement was dishonest and misleading.
We are struggling to get them to set up our 5 new starters
[85] Ms Paris proffered this as a reason why it would take time to have CMS search for the email.
[86] The evidence differed as to the precise number of new staff around the time Ms Paris sent the email and whether this would have affected the capacity of CMS to search for the missing email.
[87] It was Cox Purtell’s evidence that four new staff started around that time. These staff commenced on 2 May 2016, 10 May 2016, 12 May 2016 and 16 May 2016. 59 A further existing staff member also moved desks within the office at some point in May 2016.60
[88] Ms Paris says she was told by Christina that they “were struggling to get all the new computers on board.” 61
[89] Taken on its own I do not find that this statement was dishonest and misleading.
[90] The evidence suggests there were several new staff at Cox Purtell around the beginning of May 2016. Christina was not called by Cox Purtell to give evidence. In the absence of evidence from Christina I accept Ms Paris’s evidence that she told her that CMS “were struggling to get all the new computers on board”.
[91] However I consider this statement to be part of a set of excuses designed to deflect Nicole James from her quest to obtain the original email.
[92] Overall I find that the email of 5 May 2016 at 11.36am was dishonest and misleading.
Was Ms Paris dishonest in the investigation interview with Cox Purtell management on 26 May 2016?
[93] I have found, on the balance of probabilities, Ms Paris did not send the email on 16 April 2016, and her emails to Nicole James on 5 May 2016 were dishonest and misleading.
[94] With the exception of admitting that she had “confused” the Cox Purtell email policy with the policy of her previous employer 62 Ms Paris maintained the accuracy of her statements to Nicole James in her conversation with Mr Claire and Ms McLennan on 26 May 2016. It follows that Ms Paris was dishonest in the investigation interview with Cox Purtell management on 26 May 2016.
[95] Ms Paris gave evidence that at the time of the meeting she was on strong pain medication as a result of injuries to her ankle and shoulder. 63 Ms Paris also says she was taking antianxiety and antidepressant medication which she believed may have affected her state of mind.64
[96] Mr Claire says that he had been aware over the weeks prior to the meeting of 26 May 2016 that Ms Paris had been taking medication for an injury. 65 However Mr Claire says that Ms Paris had made it clear on several occasions prior to 26 May 2016 that this medication did not affect her ability to do her job. Mr Claire also said that on 26 May 2016 Ms Paris did not mention that she was taking medication that may affect her state of mind.
[97] I accept that Ms Paris was on pain medication but I do not think that this accounted for her conduct in the meeting on 26 May 2016. In any event the matters that I have made findings about were maintained by her during the hearing of her case many months later and accordingly I find that the answer to the question posed above is “yes”.
Did Ms Paris breach an express direction from management by speaking with a client on 26 May 2016?
[98] There is no dispute that in the meeting of 26 May 2016 Mr Claire directed Ms Paris not to “contact” any Cox Purtell client or any candidate for a role with a Cox Purtell client. 66
[99] Ms Paris interpreted this direction as a requirement not to initiate contact with a client or candidate; that she should not, in her own words “actively pick up the phone and actually call a client or a candidate.” 67
[100] It was her evidence that a representative from George Weston Foods initiated a telephone call with her on 26 May 2016 and she spoke with the person.
[101] In submissions in reply Cox Purtell provided the Commission with telephone records that were not available at the time of the hearing. These records show that at 12.39pm on 26 May 2016 the phone Ms Paris was provided for work initiated a short call to a telephone number said to be that of a representative of George Weston Foods. Cox Purtell submits that this is evidence against Ms Paris’s version of events.
[102] I gave Ms Paris the opportunity to comment on this record. Ms Paris made lengthy submissions in reply. In particular Ms Paris stated that due to the linking of her work and personal mobile phones, she did not save clients’ or candidates’ phone numbers. As the telephone records only showed outgoing and not incoming calls Ms Paris says it could have been the case that she was simply returning a missed call from a number she did not have saved in her phone and therefore would not have known who it belonged to. Ms Paris suggested that her having left a voice mail was the most likely reason that an outgoing call was recorded.
[103] As the telephone records from Cox Purtell were not available at the hearing of the matter I have decided not to rely on them.
[104] On Ms Paris’s own evidence at hearing the conversation was extensive and on any reasonable view, wholly inappropriate. As well as discussing a candidate for a role she discussed her own circumstances in the disciplinary matter the subject of this application. Whether she initiated the phone call or picked up the phone and had this conversation I consider that she breached the obvious intent of the direction given to her by Mr Claire. In this context is too literal to define “contact” as meaning initiated contact. This was no short neutral conversation that Ms Paris was obliged to have to avoid rudeness. It was an extensive conversation covering subject matter that she was directed not to discuss and extended to subject matter that was self-serving and unprofessional.
[105] I find that Ms Paris breached an express direction from management by speaking with a client on 26 May 2016.
Did Ms Paris breach an express direction from management by speaking with a candidate on 27 May 2016?
[106] There is no dispute that on 27 May 2016, after she had been dismissed, Ms Paris had a telephone conversation with a candidate for a role at George Weston Foods. 68
[107] Ms Paris says that the candidate initiated the telephone call and she received the call on her private mobile phone. She says that the call was likely made to her work phone number but received on her personal mobile due to her iPhone set up on via iCloud. She said if someone dialled her work number all her devices would ring – work phone, personal phone and iPad. 69
[108] Cox Purtell contends that Ms Paris initiated the telephone call with the candidate. An email sent to Ms McLennan from the candidate supports this contention. I consider that it is more probable than not that Ms Paris initiated the phone call.
[109] This conduct occurred after Ms Paris was dismissed and therefore could not be a ground for dismissal. However when similar conduct is alleged to have occurred before a person is dismissed the latter conduct may be relevant in considering whether the earlier conduct occurred. This is how I have treated the evidence in relation to the conduct on 27 May 2016 and I consider that it supports my earlier conclusion regarding the call on 26 May 2016.
Substantive fairness
Was there a valid reason for the dismissal of Ms Paris relating to her capacity or conduct? (s.387(a))
[110] It is common ground between the parties that the reason for Ms Paris’s dismissal related to her conduct.
[111] The conduct that was said to justify her dismissal was, in summary, that she was dishonest and misleading with a client, with management and breached an express direction given by management.
[112] A valid reason will be one that is sound, defensible and well founded ….in the context of the employee’s capacity or conduct, or based upon the operational requirements of the employer’s business. 70
[113] In order to properly consider whether the reason was sound and well founded I have considered whether the conduct occurred. I have found on the balance of probabilities that the conduct occurred. I consider that the reason was, therefore, sound and well-founded.
[114] In considering whether the reason was defensible I have given consideration to the operational requirements of the employer’s business.
[115] Cox Purtell is a small professional services business. It provides services in a highly competitive market that are assessed by clients according to the degree of trust the client has in the judgement of the professional services firm.
[116] In my opinion good judgement incorporates honesty, integrity and respect. It is unsurprising that these are the values that Cox Purtell hold out to clients as guiding their business practice and the values they require their employees to uphold. These values were not upheld by Ms Paris in her interaction with George Weston Foods. Cox Purtell’s reputation was at risk as a result.
[117] There was some disagreement between the parties about whether George Weston Foods was a significant client for Cox Purtell. I do not consider that relevant. It is not in dispute that they were a client. It is unarguable that as a large food manufacturing company George Weston Foods was significant to a small company like Cox Purtell. Plainly the relationship between Cox Purtell and George Weston Foods was at risk as a result of Ms Paris’s conduct. I consider that the reasons for dismissal were defensible.
[118] I find that Cox Purtell had valid reason to dismiss Ms Paris.
Procedural fairness
Was Ms Paris notified of this reason? (s.387(b))
[119] Ms Paris was asked to attend a meeting on 26 May 2016. She attended the meeting. It was also attended by Mr Claire and Ms McLennan.
[120] Ms Paris says that she was not informed the meeting was for disciplinary purposes. 71 She also said she was on pain medication.
[121] Mr Claire says the meeting was for the purpose of investigating the complaint made by Nicole James. 72 As noted above, Mr Claire gave evidence said that he was aware Ms Paris was taking medication, however she did not refer to it that day and she had previously informed him that it did not affect her capacity to do her job.
[122] Ms Paris said that she was not informed that her job was at risk 73 however this is contradicted by her clear anticipation that her employment might be terminated.74
[123] In this regard Ms Paris sent an email to Mr Claire on 26 May 2016 at 1.45pm. That email read in part:
“My clients view me as their trusted advisor which is why I have continued repeat business and should I keep my employment I have a champion in the business who will speak to Nicole and ensure CP are continued to be seen as a recruiter of choice should it be warranted” 75
[124] In the same email Ms Paris also stated:
“I would hate my circumstances in the last few month where I have billed the most I have billed in my time at CP to terminate my tenure at CP” 76
[125] The email concluded with the following:
“I understand it is a big ask but should I be given the opportunity to redeem myself over the next quarter I will ensure I do everything to live and breathe the CP values and lead by example.
I look forward to your response and should it be a negative one then I will drop the phone off tomorrow.” 77
[126] Ms Paris explained the contents of the email by stating that she has “a habit of catastrophising everything”. 78 She also says that she had simply been trying to “put my case forward”.79
[127] Mr Claire gave evidence that he made it clear that it was a serious matter:
“So when Belinda left the meeting I made it clear that it was a serious matter. I made it clear that I was going to spend my time investigating the allegations.” 80
[128] Ms McLennan also stated that Mr Claire had made it clear to Ms Paris, both at the start and end of the meeting on 26 May 2016 that the matter was a very serious one. 81 Ms McLennan says that at the conclusion of the meeting, Mr Claire told Ms Paris that depending on the outcome of the investigation her job was in jeopardy.82
[129] In the email she sent to Mr Claire at 1:45pm on 26 May 2016, Ms Paris said that her head had been “cloudy” at the meeting that morning due to the pain medication she was on. In her email later the same day at 2:44pm, Ms Paris again noted that her pain killers were “kicking in”.
[130] I consider that the matters contained in the reason for dismissal were apparent to Ms Paris. Despite Ms Paris’s assertions to the contrary, I consider this is clearly demonstrated in the email Ms Paris sent to Mr Claire at 1:45pm on 26 May 2016. I find it implausible that Ms Paris would herself suggest the idea of dismissal to her employer in such clear terms if she had not already been aware of the seriousness of the matter and the possibility it may lead to her dismissal.
[131] I also find that Ms Paris was not impaired in her ability to participate in the meeting. As I have noted above, Ms Paris advanced no medical evidence in support of her contentions in this regard. Ms Paris failed to mention her alleged impairment at the meeting with Mr Claire and Ms McLennan (despite being given advance warning of the meeting).
[132] Ms Paris was asked to attend another meeting on 27 May 2016. Mr Claire says that this followed Ms Paris being given the opportunity of going home to reflect on the meeting of 26 May 2016 and to look for the email. 83 It also followed Mr Claire taking further steps to look for the email.
[133] Ms Paris maintained that prior to the meeting of 27 May 2016 she was not aware it was for disciplinary purposes. 84
[134] Ms Paris gave evidence about her understanding of the reason for dismissal given in this meeting. She said the reasons were “I had lied to a client and they had lost faith in me and I had put the company in jeopardy of losing that client …” 85
[135] I conclude that Ms Paris was notified about the reasons for her dismissal and in respect to this factor there was no lack of procedural fairness that would weigh in favour of the dismissal being considered unfair.
Was Ms Paris given the opportunity to respond to this reason? (s.387(c))
[136] Cox Purtell contend that Ms Paris was given an opportunity to respond to the reasons in person on 26 May 2016, by email between the conclusion of the meeting on 26 May and the commencement of the meeting on 27 May 2016 and in person in the meeting of 27 May 2016.
[137] It is uncontroversial that Ms Paris did respond to the reasons in emails on 26 May 2016 at 1.45pm, 2.44pm and 2.55pm.
[138] However Ms Paris says that she was not given a proper opportunity to respond and was denied access to her email account to obtain evidence to confirm her position. 86
[139] Mr Purtell and Mr Claire gave evidence that after the meeting on 26 May 2016 Mr Purtell gave instructions to CMS to alter Ms Paris’s email account to prevent her from sending any new emails. 87 Both Mr Purtell and Mr Claire denied Ms Paris’s email account was “deleted” and said that Ms Paris’s statement in her email at 2:55pm that she had searched her “sent, out and deleted items” on her work iPhone was indicative of this.88 Mr Claire noted that Cox Purtell would not delete an email account because clients and candidates would contact the company using those passages. Mr Claire also said that he checked himself that Ms Paris would still be able to access her emails.
[140] Ms Paris also said that because she had returned her laptop she could not prove the email was sent. 89 I note that Mr Claire gave evidence that he searched the laptop and could not find any record of the email. I do not consider his evidence to be false.
[141] I think Ms Paris is confusing an opportunity to conduct her own investigation into the reason for dismissal with the opportunity to respond to the reasons for dismissal. I do think that Ms Paris was given the opportunity to respond and did so.
Did Cox Purtell unreasonably refuse to allow Ms Paris to have a support person present to assist at any discussion relating to her dismissal? (s.387(d))
[142] This factor concerns whether the employer has unreasonably denied an employee a support person.
[143] Whilst I consider that it is a good employment practice to do so there is no obligation on an employer to advise an employee of their right to have a support person. Similarly there is no obligation to offer an employee the opportunity of having a support person. 90
[144] Ms Paris says that she was not informed she was entitled to a support person 91 and that she did not ask for one.92 She says this was because she was not aware it was a disciplinary meeting. I do not accept Ms Paris’s evidence that she did not know that the meeting of 27 May 2016 was a disciplinary meeting. The evidence of Mr Claire, Ms McLennan and Ms Paris’s own emails make it clear that the meeting on 27 May 2016 was for disciplinary purposes. Therefore I do not accept Ms Paris’s explanation for not asking for a support person on 27 May 2016.
[145] There are some circumstances where an employee is effectively denied a support person because, for example, they are dismissed on the spot with no chance of arranging for someone else to be present or they are dismissed by phone or text message. This is not one of those situations.
[146] I find that Cox Purtell did not unreasonably refuse to allow Ms Paris to have a support person present to assist at any discussion relating to her dismissal.
Was Ms Paris warned about unsatisfactory performance before the dismissal? (s.387(e))
[147] The reason for Ms Paris’s dismissal related to her conduct. Cox Purtell did take into account earlier counselling in relation to lack of judgement and failure to follow company policies but this was not the reason for dismissal. In the circumstances of this case I do not consider that this this factor is relevant.
Did the size of Cox Purtell impact upon the procedures followed in effecting Ms Paris’s dismissal? (s.387(f))
[148] Cox Purtell is a small employer if not a small business employer in the terms of the Act. This is a relevant factor in considering the way the dismissal was carried out. To the extent that the process of investigation (the meeting on 26 May 2016 and subsequent enquiries) and the dismissal of Ms Paris (the meeting of 27 May 2016) could have been conducted with greater clarity of purpose the small size of the employer is a relevant explanation. However, I have not found an absence of procedural fairness so I have not weighed this factor in considering whether the dismissal was unfair.
Did the absence of human resource management specialists or expertise impact on the procedures followed in effecting Ms Paris’s dismissal? (s.387(g))
[149] Cox Purtell does not have a human resource management specialist however their business is in the human resources sector, albeit in recruitment rather than employment relations. I have not found an absence of procedural fairness so I have not weighed this factor in considering whether the dismissal was unfair.
Conclusion about procedural fairness
[150] I consider that Cox Purtell afforded Ms Paris’s procedural fairness throughout the process of dismissal. None of the factors above weigh in favour of Ms Paris’s dismissal being considered unfair.
Other matters
Are there any other matters relevant to my consideration of whether Ms Paris was unfairly dismissed? (s.387(h))
[151] Ms Paris was employed for around 13 months. Her length of service does not weigh in favour of her dismissal being considered harsh.
[152] Ms Paris secured alternative employment at a higher level of remuneration within 3 weeks of being dismissed. Therefore the impact of the dismissal on her material circumstances is not a factor that weighs in favour of the dismissal being considered harsh. 93
[153] It was apparent from the totality of Ms Paris’s case that she considers the response to her misconduct disproportionate to its gravity. In effect she characterises her conduct as a series of honest mistakes. I do not consider that her mistakes were honest. Furthermore these mistakes must be considered in the context of the business of Cox Purtell. In another setting even dishonesty, driven by fear of repercussions, might be more appropriately the subject of a warning with counselling. An employee might be deserving of a second chance. This is not such a setting. Integrity is at the heart of the provision of professional services in the human resources sector. Ms Paris’s lack of candour and contrition meant that her continued employment by Cox Purtell was not viable.
[154] Ms Paris cites her personal circumstances in vindication of her conduct. She explained that she was undergoing treatment for cervical cancer, this caused her to become depressed and stressed, she was supporting her sick partner and her father was ill. 94 These are certainly trying circumstances however they do not justify the conduct I have found she engaged in.
Taking into account all the factors was Ms Paris unfairly dismissed?
[155] I have found that there was a valid reason for Cox Purtell to dismiss Ms Paris. I have found that Cox Purtell afforded Ms Paris procedural fairness throughout the process of dismissal. I have considered whether there are any other matters relevant to my consideration of whether Ms Paris was unfairly dismissed. None of these other matters weigh in favour of the dismissal being considered harsh. On balance I find that Cox Purtell’s dismissal of Ms Paris was not harsh, unjust or unreasonable and therefore not unfair. I order that her application is dismissed.
DEPUTY PRESIDENT
1 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP and Hingley C 17 March 2000 Print S4213 [23]
2 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]-[34]
3 Transcript PN 513
4 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP and Hingley C 17 March 2000 Print S4213 [23]
5 Transcript PN73-PN74
6 Transcript PN 581, PN 583, PN 587
7 Transcript PN 569 – PN 570
8 Transcript PN 585 – PN 586
9 Transcript PN 281
10 Exhibit B5, Witness statement of Alan Claire, AC-13
11 Exhibit B5, Witness statement of Alan Claire, AC-13
12 Exhibit B5, Witness statement of Alan Claire, AC-13
13 Exhibit B5, Witness statement of Alan Claire, AC-13
14 Exhibit B5, Witness statement of Alan Claire, AC-13
15 Transcript PN 775
16 Transcript PN 593
17 Transcript PN 1631
18 Exhibit B6, Witness statement of Sarah McLennan, paragraph 24
19 Exhibit B6, Witness statement of Sarah McLennan, paragraph 26
20 Exhibit B6, Witness statement of Sarah McLennan, paragraph 29
21 Transcript PN 1304
22 Transcript PN 842; Exhibit B5, witness statement of Alan Claire, paragraph 32
23 Transcript PN 590 – PN 591
24 Transcript PN 592
25 Transcript PN 780
26 Exhibit B5, Witness statement of Alan Claire, AC-14
27 Transcript PN 583 – PN 587
28 Transcript PN 646
29 Transcript PN 155
30 Transcript PN 1525 – PN 1527
31 Transcript PN 1444, PN 1524
32 Exhibit B5, Witness statement of Alan Claire, AC-14, page 54
33 Exhibit B5, Witness statement of Alan Claire, AC-14, page 54
34 Transcript PN 376
35 Exhibit B3, Bullhorn Report for George Weston Foods
36 Transcript PN 569, PN 571
37 Exhibit B3, Bullhorn Report for George Weston Foods
38 Transcript PN 977 – PN 982
39 Transcript PN 1023
40 Transcript PN 1004
41 Transcript PN 1005
42 Transcript PN 126 – PN 127, PN 130, PN 337 – PN 338, PN 843 – PN 844
43 Transcript PN 161
44 Transcript PN 1034
45 Transcript PN 979 – PN 982
46 Transcript PN 1434
47 Exhibit W2, Witness statement of Belinda Paris, paragraph 45
48 Transcript PN 601
49 Transcript PN 643
50 Transcript PN 1047
51 Transcript PN 640
52 Transcript PN 643
53 Exhibit W2, Witness statement of Belinda Paris, paragraph 47; Transcript PN 684
54 Transcript PN 688
55 Transcript PN 1065
56 Transcript PN 1066
57 Transcript PN 1566
58 Transcript PN 780
59 Transcript PN 740
60 Transcript PN 745
61 Transcript PN 756
62 Exhibit B5, Witness statement of Alan Claire, paragraph 27
63 Transcript PN 806
64 Transcript PN 807
65 Transcript PN 1335
66 Transcript PN 1514
67 Transcript PN 891
68 Transcript PN 1199 – PN 1205
69 Transcript PN 1214
70 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
71 Transcript PN 811
72 Transcript PN 1336
73 Transcript PN 182
74 Transcript PN 1102 – PN 1111
75 Exhibit B5, Witness statement of Alan Claire, AC-14, page 55
76 Exhibit B5, Witness statement of Alan Claire, AC-14, page 56
77 Exhibit B5, Witness statement of Alan Claire, AC-14, page 56
78 Transcript PN 1108
79 Transcript PN 1111
80 Transcript PN 1352
81 Exhibit B6, Witness Statement of Sarah McLennan, paragraphs 34, 35 and 37
82 Exhibit B6, Witness Statement of Sarah McLennan, paragraph 37
83 Exhibit B5, Witness statement of Alan Claire, paragraph 28
84 Transcript PN 1112
85 Transcript PN 865
86 Applicant’s submissions page 2, 3 November 2016; Transcript PN 842
87 Transcript PN 1496 – PN 1499
88 Transcript PN 228, PN 307, PN 1496 – PN 1503
89 Transcript PN 590, PN 788
90 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542]
91 Exhibit W2, Witness statement of Belinda Paris, paragraph 88
92 Transcript PN 1112
93 Transcript PN 1206 – PN 1208
94 Exhibit W2, Witness statement of Belinda Paris, paragraph 93
Printed by authority of the Commonwealth Government Printer
<Price code C, PR586296>
0
3
0