Bellona Edmonds v Inghams Enterprises Pty Ltd
[2011] FWA 7244
•21 OCTOBER 2011
[2011] FWA 7244 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bellona Edmonds
v
Inghams Enterprises Pty Ltd
(U2011/8753)
COMMISSIONER BISSETT | MELBOURNE, 21 OCTOBER 2011 |
Application for an unfair dismissal remedy.
[1] A decision was handed down in transcript on 12 October 2011. The following is an edited version of that decision.
[2] This is an application for relief from unfair dismissal under s.394 of the Fair Work Act 2009 by Ms Bellona Edmonds. I issue the following decision in transcript, mindful of the need for all parties to have this matter brought to a conclusion as quickly as possible. Giving my decision in transcript by necessity means I will not discuss all of the evidence in detail. The parties should be aware, however, that I have carefully considered all of the material put before me today.
[3] Ms Edmonds worked for Inghams Enterprises Pty Ltd where she commenced employment in January 2004. I have heard evidence in these proceedings from Ms Edmonds, Ms Berryl Chase, Ms Debbie Griffin, Ms Maryanne Soliai, Ms Jodie Francis, Mr Bob McMillan, Ms Rose Keys and Mr Nathan Herford. The evidence went to events leading up to and including that which occurred on Friday 27 May 2011, when Ms Edmonds is alleged to have used her hands to push Ms Francis out of her way, after she bumped into the trolley Ms Francis was pushing. The evidence also went to some union matters, a shared lunch, rostering of the new forklift drivers, and normal practice and/or common sense practice in the workplace.
[4] Ms Edmonds' employment was terminated on 30 May 2011 following the bullying and harassment of another employee, Ms Francis, which was found to be in breach of Inghams' harassment, bullying, anti-discrimination and equal opportunity policy. Ms Edmonds had previously been issued with a final warning for such behaviour with respect to the same employee on 19 April 2011.
[5] This incident led to the termination of Ms Edmonds' employment followed earlier incidents involving both Ms Edmonds and Ms Francis, including the April incident which led to the final warning and an incident on 21 May 2011. In fact there appears to have been a long-running history of six to 12 months of ill will between the two that has on a number of occasions boiled over into verbal spats, accusations of adverse treatment and so on. It also appears, although I make no finding on the matter, that it spilled over into issues of union representation.
[6] The relationship between Ms Edmonds and Ms Francis appears to have split the workplace to an extent. Evidence was consistent that this relationship had an adverse impact on the work environment. The extent to which the workplace has improved since the termination of Ms Edmonds' employment was not as clear. What is clear is that these events have taken an emotional toll on many people, including the Applicant and Ms Francis.
[7] With respect to the incident on 27 May 2011, I accept the evidence that the normal practice was for the person undertaking Quality Assurance (QA) to allow a packer to finish their immediate task, that is, shifting the cartons and then, as necessary, affixing a label to them, at which point the packer would move to enable the QA to pass through. As was commented on by more than one witness, it was just common sense and good manners. I also accept that at times, depending on the positioning of the packer, they might not see the QA, in which case common sense would dictate that the QA provide some verbal cue as to their presence and the need to move through.
[8] On the basis of the evidence put before me today, I find that Ms Edmonds bumped into Ms Francis' trolley on 27 May and that this was accidental. Ms Edmonds then pushed Ms Francis with her hands. Whether this was a soft or a hard push is not to the point. Ms Edmonds should not have placed her hands on Ms Francis. This was followed soon after by Ms Edmonds asking Ms Keys to tell Ms Francis that if that happened again, she would go to the police. In reaching my conclusion with respect to the evidence, I prefer the evidence of Mr Herford and Ms Francis as to what occurred, to that of Ms Edmonds.
[9] I also accept the evidence of Mr McMillan and Ms Keys as to what they observed on the CCTV, or the video, and as is recorded in their statements, although I do express my surprise that a copy of the video surveillance tape was not retained for the purposes of these proceedings.
[10] On this basis, and given that she has already been issued with a final warning and that that warning related to a previous altercation with Ms Francis, I find that there was a valid reason for the termination of Ms Edmonds' employment. The final warning indicated that any recurring instance of the behaviour would result in the termination of Ms Edmonds' employment.
[11] Ms Edmonds' behaviour on this occasion was investigated. Ms Edmonds in the first instance denied that she had touched Ms Francis but changed this on viewing the video footage. She agreed that she touched Ms Francis but denied pushing her. Whilst Ms Edmonds denies seeing the video footage, I prefer the evidence of Mr McMillan on this matter.
[12] Ms Edmonds was notified of the reason for the termination of her employment.
[13] I find that Ms Edmonds was given an opportunity to respond to the allegations against her. She was interviewed first on 27 May 2011, and provided a written statement at that time, and again on 30 May. On both occasions she knew of the complaint against her and was given an adequate opportunity to present her response to the allegations.
[14] Ms Edmonds was not denied the opportunity to have a support person present. Whilst she says she did not have a support person present, I note that at the meeting of 30 May 2011, Ms Dawn Crisafulli, a union organiser, was at that meeting. While it is not clear if Ms Edmonds had a support person present at the meeting of 27 May 2011, there is no evidence to conclude that she was denied the right to have such a support person and that is the requirement under the Act.
[15] I do not consider the size of Inghams' undertaking as relevant in determining this matter.
[16] With respect to any other matters, I have had regard to other incidents in the workplace, including the shared lunch incident and the union incident, if I can call them those.
[17] There appears, as I have said, to have been a longstanding level of ill will between Ms Edmonds and Ms Francis. This situation had been going on for some time and has had an adverse impact on the workplace. Ms Edmonds agreed in her evidence that she is emotional and at times does get angry. Ms Edmonds submitted that the relationship between herself and Ms Francis could have been better dealt with by Inghams’ management and that mediation should have been utilised to try and resolve the issues between the two of them more effectively. This may be so, but this is not the question that I need to decide here today.
[18] My decision is whether the termination of Ms Edmonds' employment was harsh, unjust or unreasonable. It is easy to look back and say, "Yes, things could have been done better." Hindsight is always a wonderful thing. I am also aware of the consequences and effect of the termination of Ms Edmonds' employment on her personal and family lives.
[19] Taking all of these matters into consideration, I find that Ms Edmonds' dismissal was not harsh, unjust or unreasonable in the circumstances. Ms Edmonds has not been unfairly dismissed.
[20] The application is therefore dismissed.
COMMISSIONER
Appearances:
B Edmonds on behalf of herself.
J Jones on behalf of the Respondent.
Hearing details:
Brisbane.
12 October:
2011
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