Carolyn Downs v Eaton Services Group Pty Ltd
[2016] FWC 2751
•10 JUNE 2016
| [2016] FWC 2751 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Carolyn Downs
v
Eaton Services Group Pty Ltd
(U2016/3545)
COMMISSIONER SIMPSON | BRISBANE, 10 JUNE 2016 |
Unfair dismissal Application for relief from unfair dismissal – Jurisdictional Objections regarding Minimum Employment Period and Employment for a specified time/task dismissed – Valid reason for dismissal – Dismissal not unfair.
[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Ms Carolyn Downs who alleges that the termination of her employment with Eaton Services Group Pty Ltd (“Eaton”) was unfair. Ms Downs commenced her employment on 29 May 2015 and was terminated from her role as a casual cleaner via a text message on 17 December 2015 effective immediately. Eaton, a contract cleaning company is not a small business.
[2] Ms Downs read the text message dismissing her about 15 minutes before reporting to work, although it had been sent to her several hours earlier. The text message was from Ms June Theuerkauf, the Operations Manager of Eaton and was as follows:
“Hi Caroline,
Due to gross misconduct that has been reported to us by our client and witnessed by a fellow employee from the night of the 16th December, your employment is immediately terminated, and all money owed will be paid to you within 24 hours after receipt of your timesheet. All correspondence should be directed to Eatons by email. A letter will be posted to you.
Thanks June”
[3] A subsequent letter was sent on the same day from Bert Smits the Managing Director of Eaton to Ms Downs and read as follows:
“Dear Carolyn
re: Termination of Employment
This morning we received a very serious complaint in that you verbally abused a staff member employed by our Client, Queensland Academy of Sport. Your abuse and intimidation you levelled at him was also witnesses by another Eaton’s employee.
We have no choice but to terminate your employment effective immediately due to your actions as being a serious breach of Company Policies and Procedures.”
[4] Ms Downs denies the allegation regarding her conduct on the night of 16 September. Ms Downs submits the dismissal was not for a valid reason, and further was procedurally unfair as she never had any opportunity to respond to the allegation before the termination.
[5] The application was filed on the 5 January 2016. Eaton filed its Form 3 response on 4 February. Conciliation was conducted on 8 February that did not resolve the matter. The Unfair Dismissal Team issued a notice of listing on 17 February for the matter to be listed for arbitration in Brisbane in May 2016.
[6] On 18 February and 29 February Deputy President Gooley issued Orders for Production of documents by Eaton, and on 25 February Deputy President Gooley issued separate Orders for Production of documents by the Queensland Academy of Sport.
[7] Directions for filing of material were amended a number of times. On 4 April Eaton filed a Form 4 Objection to the Unfair Dismissal Application. On 7 April Kaden Boriss Legal filed a Notice of representative commencing to act for Eaton.
[8] The solicitor for Eaton raised in April two jurisdictional matters, firstly claiming Ms Downs did not meet the minimum employment period, and further that Ms Downs was employed for a specified task and therefore not entitled to make the application.
[9] At a mention on 28 April Senior Deputy President Drake instructed Eaton to file any material in which they intended to rely in relation to the jurisdictional objections by 4 May 2016. On 29 April Senior Deputy President Drake issued a further Order in response to an application from Eaton for Stephen Simpson to attend to give evidence. I was allocated the file and on 6 May following an application from Ms Downs issued a further Order for production on Eaton.
[10] On 10 May at a telephone mention I granted permission for Eaton to be legally represented and confirmed with the parties that the jurisdictional and substantive matters would be heard together. At the commencement of the arbitration on 11 May the parties agreed to the matter proceeding as a determinative conference.
Jurisdictional Issues:
[11] Eaton denies Ms Downs employment was regular and systematic and that she had a reasonable expectation of continuing employment on a regular and systematic basis. Ms Downs submitted that it was never communicated to her that her employment was anything other than ongoing.
[12] Eaton submitted that Ms Downs role as a casual worker was based on specific contracts to be fulfilled by Eaton for clients, and where there are contracts with clients in existence to provide cleaning services at specific locations and times, cleaners are required to meet those obligations.
[13] Eaton submits that absent client needs to be serviced; there is a lesser need for cleaners in Ms Downs’s position and that this was known to Ms Downs. It was argued that all her documents, her induction, and her employment materials made it clear that she was assigned to QAS to service that need.
[14] Eaton submits that Ms Downs role was specifically a casual one, as are the majority of Eaton cleaners, and this is a deliberate and studied decision, based on the casual need to fulfill various contracts at different times.
[15] Eaton submits that Ms Downs’ outline of argument at paragraphs 3 and 4 wrongly asserts an expectation of ongoing regular and systematic employment, failing to take into account these considerations, and there was no basis to assume further work could or would be offered or be ongoing.
[16] Eaton submits that Ms Downs’ case can be distinguished from Cori Ponce v DJT Staff Management Services Ply Ltd 1and similar cases by virtue of the fact that continued employment can only be set as a function of client needs, not Eaton. It was said Eaton had no ability to offer any expectation of continued work.
[17] Eaton submits that the original job application and staff induction signed by Ms Downs are clear on the nature of the role. Nothing in the activities engaged in by Ms Downs during the period of her employment suggested regular and systematic employment with a reasonable expectation of continuing employment, only a specific need, of a specific client, at a specific time.
[18] Eaton submits that even if it is accepted by the Commission (which is denied) that the period when Eaton was under contract to QAS was sufficient to provide the expectation of continued employment up to that point, that contract expired in November 2015. Thereafter Eaton operated with QAS on a month-to-month basis.
[19] Ms Downs commenced work on 29 May 2015. Eaton submitted that period, through to the expiry of the contract in November is less than six months. Even if that period is taken to count as service for the minimum employment period, the period thereafter cannot, by virtue of the operation of s.384 of the Act.
[20] Eaton submits that therefore, Ms Downs has not completed the “minimum employment period” within the meaning of the Fair Work Act 2009, due to the operation of s. 384 of the Act.
[21] Ms Downs submits her employment was regular and systematic as:
● She was engaged for a stable 56 hours a fortnight for the entire period of her employment, earning a rate of $25.84 an hour;
● She worked Monday to Friday, five hour night shifts and then another three hours on one occasion each weekend;
● The pay she received each week was identical unless she worked overtime in which case she received an additional amount for the extra hours worked.
[22] Ms Downs submits she had an expectation of ongoing employment because there was never any indication given to her that the position was anything other than ongoing. Ms Downs submits there were two regular cleaners at the QAS site and no apparent end to the engagement of Eaton Services Group to supply such cleaners at that location. Ms Downs submits she understood her position to be one which could be moved to other sites if need be, of which there are apparently a large number.
[23] Having considered the submissions and evidence I reject Eaton’s jurisdictional objection concerning regular and systematic employment, or a reasonable expectation of continuing employment on a regular and systematic basis. The evidence disclosed that Ms Downs worked on a regular and systematic basis from the commencement of her employment with Eaton at the QAS site both before and after the expiry of Eaton’s cleaning contract with QAS, which was renewed on a month to month basis after it expired in November 2015 and it turns out was subsequently extended on a more permanent basis in February 2016 several months after Ms Downs termination. There can be no question that the nature of the rostered hours of work on the same days of the week, week in week out satisfies the meaning of regular and systematic employment.
[24] In the circumstances it is appropriate to conclude Ms Downs had a reasonable expectation of ongoing employment. The evidence was not entirely clear when Ms Downs learned that the client did not renew its contract in November 2015, and instead decided to roll the contract over on a month by month basis. She claimed her mother told her after she had been terminated, whereas Ms Theuerkauf said Ms Downs was at least advised 2 at the time of induction the contract was expiring in November 2015. That is not evidence that the contract would not be renewed as it ultimately was. The fact is Ms Downs enjoyed a regular and systematic pattern of casual employment that had been ongoing for the entirety of her employment and for a reasonable time after the November date when the contract was up for renewal. This same pattern continued right up to 17 December, the date of termination. On that basis I am satisfied she had a reasonable expectation of ongoing employment on a regular and systematic basis.
[25] The other jurisdictional objection was put on the basis that Ms Downs had not been dismissed within the meaning of that Act as she had only been engaged to service a particular client and was accordingly employed for a specific task and the task ended when Ms Downs could no longer perform the specified task when QAS barred her from the site. Accordingly Eaton argues that the cessation of the employment of Ms Downs does not meet the criterion for dismissal under s.386(2)(a).
[26] The specified task exception in s.386(2)(a) does not apply in this case. The task of the employee was to perform cleaning work at the QAS site for Eaton. The same cleaning work being performed by Ms Downs continues to be performed by different employees of Eaton up to the time of the hearing. The task has not been completed, it is ongoing. Further Ms Downs was not employed by QAS, she was employed by Eaton, so when QAS made a decision to bar Ms Downs from its site it cannot be said that act could be regarded as the ending of a specified task to be performed as agreed between Ms Downs and Eaton.
Was the dismissal Unfair?
[27] Ms Downs submits she was dismissed for the following conduct, described as follows:
● verbal abuse and intimidation levelled at a staff member employed by the Queensland Academy of Sport (in the termination letter);
● gross misconduct that has been reported to us by our client and witnessed by a fellow employee (from the text message from June Theuerkauf, operations manager, 17 December 2015);
● the client’s request to immediately have Carolyn Downs removed from employment at Queensland Academy of Sports (from the F3 Employer’s Response Form); and
● yelling at security and removal from the approved list of cleaners (from the email exchange between Karen Jessop at QAS and QAS in-house lawyer Tom English, filed in the Fair Work Commission).
[28] Ms Downs denied the allegations and submits there was no procedural fairness followed in the dismissal process. She submits she had no opportunity to respond to any allegations as she was dismissed summarily. She denies there was any serious misconduct.
[29] Ms Downs submitted there was no valid reason for the dismissal. In response to the criteria in s.387(b),(c) and (d), Ms Downs submitted she was notified of her termination and the reason for the termination in a text message from June Theuerkauf on 17 December 2015 and in the termination letter from Bert Smits, the Managing Director later that same day. Ms Downs submits there was no process followed to notify her, no opportunity to respond and no opportunity to bring a support person of any sort. In response to the criteria in s. 387(e) Ms Downs submits there were no warnings given.
[30] In response to the criteria in s.387 (f) and (g) Ms Downs submits Eaton is a large employer, and nonetheless, if it employs Human Resources staff, none had any hand in the process to dismiss her. For a company of this size Ms Downs submitted the absence of any HR staff must be considered deliberate disregard for proper practice.
[31] In response to this criteria in s.387(h) Ms Downs submits Eaton has relied entirely on representations from its client QAS regarding allegations made against her in its decision to dismiss. She submitted that QAS itself did not investigate the allegations but simply accepted a complaint, as being sufficient grounds to find her conduct unsatisfactory.
[32] Ms Downs referred to what she described as a similar and recent case of Kool v Adecco Industrial Pty Ltd 3 and specifically paragraph 78 of that decision. That matter is distinguishable from this matter as it involved a labour hire arrangement unlike this case. It is similar to the extent that the employer in each case has acted, at least in part on the adverse opinion of a third party to terminate its own employee and did not provide the employee procedural fairness. This case is also distinguishable from Kool in that Eaton also had available to it before terminating Ms Downs some corroborating information from one of its own employees, I addition to knowledge of prior conduct of Ms Downs which would tend to weigh in favour of accepting the allegation had substance. I will deal with those matters in detail below.
[33] Eaton submits there was a valid reason for dismissal on the following basis:
Given the material from Stephen Simpson, Rebecca Murray, Tai-Ling Ham and Michelle Cameron it is clear that:
(a) The Applicant had a general and significant background of aggressive, disruptive and bullying behaviour; and
(b) The events of 16 December 2015 and the Applicants conduct at the time, represented a genuine incident of incitement of a sufficiently serious character to warrant dismissal.
[35] Eaton says that it must be noted that this is not a simple matter of raised voices or interpersonal tensions, and the altercation with the security officer Mr Simpson was significant enough that a trained security guard felt the need to call for backup to deal with the volatile situation.
[36] Eaton says the matter was not a dispute between the employees which was able to be mediated. Eaton claimed Ms Downs abused a service provider of a customer to the point of genuine upset or fear.
[37] Eaton submitted that the reputational damage to its business if this kind of behaviour was seen to be tolerated is also significant, and the behaviour of Ms Downs was wholly inconsistent with the continued employment contract. Eaton also complained reputational damage was not merely a potential risk but a manifested risk because Eaton was contacted by one of its significant clients, a government enterprise, with a warning that Ms Downs had disrupted its affairs and was barred from the site.
[38] Eaton said that the client indicated that it would terminate the entire contract in the event that this issue was not rectified. Eaton relies on both the events on the night of 16 December 2015, and the email from Karen Taylor of the QAS on the morning of 17 December 2015.
[39] Eaton put submissions to the effect that the conduct falls within the meaning of serious misconduct as prescribed by the Fair Work Regulations. For all of these reasons Eaton maintains there was a valid reason for dismissal.
[40] There was quite a bit of evidence on the matter of whether the policy and procedure book that Ms Downs signed off as having read at the time of induction was the same book that Eaton produced for the purpose of this application and now asserts she was in breach of by her conduct. I do not intend to spend a lot of time on this evidence except to say that when the evidence is viewed in its totality it would seem more likely than not that the January 2015 policy that Eaton relies on was the policy book she was shown to Ms Downs at the time, and not the earlier 2012 version as she asserted when comparing the heading and font of the page she had signed. Ms Theuerkauf’s evidence was of assistance in this regard.
[41] Ms Downs accepted that insofar as the document represented a set of rules, if breached, particularly the code of conduct in respect of how you speak and act towards people, there could be serious disciplinary consequences. 4
22 October 2015
[42] Ms Downs claimed that on a night in October 2015 in the presence of two security officers , one of the security officers, Mr Simpson said words to the effect of “there are hidden cameras, be careful; Michelle put two covert cameras around because electronics had gone missing.” Ms Downs said that she replied with words to the effect of ‘I don’t care, I touch nothing.” She claimed Mr Simpson said words to the effect of “I’m just warning you, they are hidden and be careful. Michelle is always looking at tapes.”
[43] Ms Downs said she felt upset by Mr Simpson’s comment and she felt like he was accusing her of stealing. However it was also her own evidence that her mother who was with her at the time and witnessed the conversation didn’t feel anything like that and perceived the conversation differently to Ms Downs. Ms Downs said she felt Mr Simpson was pointing the finger at her because she is brown skinned. 5 6
[44] Ms Downs said the next night she went up to the two security officers and said something to the effect of “was that an accusation or an assumption about the hidden cameras?” Ms Downs said Al (Albert Bruinsma, another security officer) apologised and said he was sorry, but Mr Simpson said “I can’t talk to you, there’s no point talking to you, end of conversation.” Ms Downs said she was upset as she was trying to explain how she felt and he didn’t let her talk.
[45] Mr Simpson gave evidence that he is a security guard with CAP Security Services Pty Ltd and had been in the role for 3 and a half years, although he said he had worked at the QSAC site for 17 years. 7 He said on the night of 22 October his colleague Mr Albert Bruinsma made a comment to Ms Downs which he believed was misinterpreted. He said Ms Downs asked if there were security cameras in the QAS precinct and if they could see inside it. Mr Simpson said Albert replied that we (the security guards) could see every camera on site, and his tone was light and joking. Mr Simpson said Ms Downs asked to see where the cameras were in QAS and what they could see. Mr Simpson said that Albert invited her to come to the glass door and see where she could see the cameras, and he then pretended to lose power, and pressed a button so the cameras went off. Mr Simpson said Albert was joking around and then explained the joke by telling Ms Downs that QAS have their own cameras inside the QAS premises, and Mr Simpson said he made a remark to the effect that he agreed with this.
[46] Mr Simpson said that Albert mentioned that it was monitored because some electronic items had gone missing before from QAS. Mr Simpson said there was no accusation in this. He said Albert’s tone was still friendly and it was just part of a general conversation about cameras. Mr Simpson said Ms Downs and her mother than left without incident. Mr Simpson said he never accused Ms Downs of needing to watch herself in respect of the cameras. He said he never said he was warning Ms Downs about anything. 8 Mr Simpson claimed that on the following shift Ms Downs came to him and said she felt that Albert had accused her, and that she could not be trusted, and that she was upset about this. Mr Simpson said that this surprised him because there was no accusation or remark that could reasonably be taken as such. Mr Simpson said that when Albert came on shift later than evening he relayed to Albert what had been said and when Ms Downs was leaving that night Albert apologised for any misunderstanding about what he said, and sought to clarify what he meant.
[47] Mr Simpson claimed that Ms Downs then became loud, upset and vocal in saying that Albert had accused her. Mr Simpson said that Albert kept trying to calm her down and explain the misunderstanding. Mr Simpson claimed that he also apologised for any misunderstanding. 9
15 December
[48] Ms Downs said on 15 December when she went to work Mr Simpson said words to the effect of “I have been meaning to apologise for the way I have been treating you”. Ms Downs also accepted in cross examination Mr Simpson apologised even though Ms Downs own mother did not perceive Ms Simpson as having accused her of anything back in October. 10
[49] Ms Downs further claimed that Mr Simpson said “people that know me know what’s going on and people that don’t think that I’m just not talking.” Ms Downs said that she asked Mr Simpson if this was to do with the night about the hidden cameras comment and he replied yes. Ms Downs said that she told Mr Simpson that the comment really upset her and she went home crying. Ms Downs claimed that Mr Simpson then told her about a member of his family passing away.
[50] Ms Downs than claimed she asked Mr Simpson why he was apologising now when the other security officer had apologised the night after the incident, and she claimed Mr Simpson then changed the subject. Ms Downs claimed the conversation felt insincere. 11 In oral evidence it became apparent that Ms Downs believed that Mr Simpson had not been speaking to her since October and this appeared to feed her impression that he had accused her of stealing, saying “But it kept on building up and I felt like I was coming into work and being accused by Stephen. Stephen not treating me just with the courtesy of hello or goodbye.” 12Ms Downs accepted that Mr Simpson did not do anything else during the period between 22 October and 15 December other than refrain from speaking to her.13 She described the working relationship as pleasant before the incident in October 2015. 14
[51] Ms Downs said the next night when she started work she handed Mr Simpson a letter and she said she told Mr Simpson she could not explain herself the previous night so she put it in a letter. She said Mr Simpson looked at her without speaking and she went to work. The letter read as follows:
“To Steve,
In regards to our conversation last night I was put on the spot and find it hard to say anything now to you as after that night I find you intimidating. An apology does not change the way I was made to feel. I always came to work with a professional manner and I wish to continue this way.
I am letting you know I am not accepting your apology as I do not feel it is genuine, as the timing of it occurred after a complaint was made.
I feel you trying to apologise to me last night has made a mockery of my feelings.
Albert apologised once I knew I was offended and I accepted the apology and thanked him for it at the time. You were present and had the opportunity to apologise but you chose not to.
You have shown no remorse or have been civil to me e.g saying hello when I collect the keys or bye when I hand in the keys. By saying what you said that night made me feel like I was under suspicion for the electronics you said had gone missing and was being watched on hidden cameras that you warned me about.
Last night 15/12/2015 you said you have not felt like talking to people because of things that have happened in your personal life, no matter what’s going on in your personal life gave you no excuse to say those things you said to me and then treated me like in a manner you did when I was upset and tried to defend myself and talk to you about it.
Again your apology is not accepted and I am writing this letter so you do not pester me again for an apology. All I want is to come to work and do my work.
Carolyn”
[52] Ms Downs said that later in the shift she was cleaning in the toilets and Mr Simpson came to see her in the company of another cleaner Michelle Cameron. Ms Downs said Mr Simpson told her he was bringing Michelle in as a witness. Ms Downs said Mr Simpson told her there were discrepancies in the letter and because the other security officer is named in the letter he would have to show it to the other security officer. Ms Downs claimed she said that she did not care. Ms Downs said this occurred at about 8.30pm. 15
[53] Ms Downs said later in the night she went to the foyer to see Mr Simpson. Ms Downs said the foyer is large and they were standing about 10-12 metres apart. Ms Downs said she wanted to talk to him because she didn’t want to tell Michelle Cameron what was going on. Ms Downs claimed she said to Mr Simpson “I didn’t want to drag in people.” She claimed Mr Simpson said to her “Stay away from me I don’t want to talk to you.” Ms Downs claimed she said “That’s why I wrote the letter”. She said she called to Mr Simpson “You can’t bring witnesses in” and he replied “I’m allowed, I’m security” and then he walked out the door. Ms Downs said this exchanged occurred at about 9.30pm.
[54] Mr Simpson said following the incident in October contact (between himself and Ms Downs) had been kept to a minimum and he was careful to be professional as he thought it would keep things amicable. He said there were no major incidents until 15 December.
[55] He said on 15 December Ms Downs came to work at 6.55pm and she was friendlier than she had been over the previous months. Mr Simpson claimed he said words to the effect that he was glad they could put the October incident behind them and move on. He said that he was again sorry for the misunderstanding on 22 October.
[56] Mr Simpson said at 8.30pm Ms Downs returned to the foyer and said she would not accept Mr Simpson’s apology, that it was late in coming, even though he said he had apologised on 22 October. Mr Simpson said he was disappointed but replied “that’s fine” as he didn’t want to say anything further and wanted Ms Downs to know he had listened to what she had to say. Mr Simpson said Ms Downs then left and returned to her duties. 16
[57] Mr Simpson completed a CAP Security Incident Report Form that night that is consistent with the version he gave in his statement and oral evidence. 17
16 December
[58] Mr Simpson said that on the next evening of 16 December Ms Downs arrived at 5.15pm and handed him a note. Mr Simpson said Ms Downs said to him “I’m not very good at talking so I have written it down and made a copy of it.” Mr Simpson said Ms Downs then walked off.
[59] Mr Simpson said that he then read the note and noticed a lot of inaccurate information and untruths. Mr Simpson said he took offence to a number of things said in the note as they were untrue. Mr Simpson said as Albert Bruinsma’s name was mentioned in the note he wanted to discuss it with him. Mr Simpson said once he had read the note he felt that it required an incident report and log entry so as to bring it to the attention of management. He said he wanted to mention to Ms Downs that there were a lot of inaccuracies in the note and inconsistencies. 18
[60] Mr Simpson said that he felt it was appropriate to approach Ms Downs with someone else present as he wanted a witness in the event that the discussion was misconstrued or Ms Downs made further untrue allegations. Mr Simpson said that Michelle Cameron, another Eaton cleaner was the only other person on site and the only person he could ask to be a witness.
[61] It was Mr Simpson’s evidence that he went to where Ms Downs was working with Ms Cameron and he approached her and said he had read the note and it contained a number of untruths and accusations, and that he would need to advise management that he had received it.
[62] Mr Simpson claimed that Ms Downs stopped cleaning and became immediately upset and raised her voice. Mr Simpson said that Ms Downs said “fine I’ll just ring mum.” Mr Simpson said he would need to show the note to Albert. Mr Simpson said Ms Downs said words to the effect of he could show the note to whoever he wanted.
[63] Mr Simpson said that Ms Downs later came to find him in the foyer, and that they were perhaps 6 metres apart. He said Ms Downs was angry, had an aggressive stance and was gesturing at him aggressively. Mr Simpson claimed Ms Downs shouted words to the effect of he was in “big trouble” and that she would “take it to the top”. Mr Simpson said that Ms Downs then shouted words to the effect that he had no right to bring another Eaton staff member in as a witness. Mr Simpson claimed that he replied “Carolyn I don’t want to take this any further”. Mr Simpson said he remained calm despite her anger and aggression. He said that Ms Downs then walked off. 19
[64] Mr Simpson said that he tried to resume his duties but he was shaken by the incident. He said he felt uncomfortable and threatened by her tone, words and actions. He said he went upstairs to another area on level 1 to make his reports on the incident. He said on level 1 he could still monitor the relevant CCTV areas of the stadium. He said while he was monitoring he saw Ms Downs return twice to the foyer and that she still appeared angry. He said on Ms Downs second return to the foyer, she approached half way to the foyer counter, and stood on tip toe to look over the glass in a clear attempt to find him. Mr Simpson said he felt compelled to stay on level 1 to avoid encountering Ms Downs again. 20
[65] Mr Simpson said he called the CAPS control room at the “Gabba” and advised he would stay on level 1 until his replacement relieved him. He said he then called Albert and asked him to come earlier so they could have two people on site in case Ms Downs tried to approach him again. Mr Simpson said he was concerned Ms Downs behavior was unpredictable and given the note she had prepared he did not trust her to be honest in her interactions with him. 21
[66] Mr Simpson completed two CAP Security Incident Report Forms that night, one at 17:15 hours, and the second at 20:30 hours. The two reports were consistent with his subsequent statement and oral evidence. 22
[67] Ms Cameron gave evidence about the initial exchange between Mr Simpson and Ms Downs that she witnessed, and a subsequent conversation she had with Ms Downs on the evening of 16 December, and also her actions in reporting the events of the night of 16 December to her supervisor Tai-Ling Hams as follows:
“34. Carolyn walked up the stairs. I was shocked as she would normally come in at the other end of the building.
35. I smiled and said jokingly: “What are you doing coming up here? Did you get lost?”
36. Carolyn said that she had just seen Steve. She said that she had “abused” him. She said that she had told him that he was a workplace bully and that he had “invaded her privacy” by allowing me to witness his question about the matter.
37. I was shocked. I kept vacuuming. I didn’t speak to Carolyn again after that.
………..
39. Later on, at 9.20pm I sent a message to Tai-Ling Hams, my supervisor, saying that there had been an altercation between Carolyn and the security officers.
40. Tai called me the next day and asked for details. I recounted what I had witnessed to her.”
[68] This evidence was given in the context of Ms Cameron also being present during the earlier exchange between Mr Simpson and Ms Downs on the evening of 16 December when Mr Simpson had asked Ms Cameron to attend as a witness as set out in her witness statement. Ms Cameron’s evidence regarding this earlier exchange included that Ms Downs was angry and yelling aggressively at Mr Simpson.
[69] Ms Downs accepted that both the email and the letter of 17 December state that Ms Downs conduct was witnessed by another employee 23and that Ms Cameron’s evidence was that she was questioned by Tai-Ling Hams.24Ms Hams gave evidence she received a text from Ms Cameron on the evening of 16 September and she rang Ms Cameron to find out what happened.25 Ms Hams gave evidence concerning what Ms Cameron had told her about the conduct of Ms Downs on the night including her being aggressive and yelling at Mr Simpson. Ms Hams gave evidence that she passed this onto Mr Smits. 26 In her oral evidence she corrected the date as being intended to be a reference to the next day being 17 December.27 She also clarified the references in her statement concerning what was said between Mr Simpson and Ms Downs was a reference to what she had been told by Ms Cameron.28
[70] Mr Smits provided as an attachment to his evidence an email 29from Karen Taylor, a QAS officer which was sent to him at 11:10am on 17 September and was as follows:
“Hi Bert
As discussed, I have had a report provided to me that Caroline (Eatons cleaner) was yelling at the security guards employed by QSAC last night to the point where he felt intimidated and had to call for back up.
This is not acceptable. Please ensure that Caroline is not used at QAS again and I have removed her name from the list of cleaners allowed on site.
Could you please let me know the name of her replacement so that I can add the name to the list.
Kind regards
Karen”
[71] Mr Smits set out in his witness statement the steps he took to seek to investigate what occurred after receiving the email from Karen Taylor. Mr Smits said given the complaint of the security guard was verified by Ms Cameron an employee of Eaton to her supervisor Ms Hams, he believed the account described to him by QAS was corroborated. 30
[72] Mr Smits maintained CAP security would have advised QAS of the incident. 31 He said he found out about the incident the next morning.32Mr Smits said he spoke to QAS, CAP Security, Ms Theuerkauf and Ms Hams. 33Mr Smits said he made the judgement on the day and he believed he made the right decision. 34In his oral evidence when asked what the reason for dismissal was Mr Smits answered abusing and threatening tactics towards the QAS contractors.35Mr Smits said he had to ask for a copy of the incident report.
[73] Mr Smits said that the incident and the potential reputational damage with QAS were highly significant and Ms Downs employment needed to come to an end due to the incident. 36
[74] Mr Smits said prior to this there had been a number of incidents with Ms Downs, including her being disallowed from contacting the administrative staff due to her abusive and aggressive tone. Mr Smits claimed Ms Downs had been informally warned about this behavior. 37
[75] I asked Ms Smits if he knew about a complaint made (this was in reference to a complaint Ms Downs and her mother said they had made about the security officer) but his evidence was to the effect that no complaint had ever come to him. 38
[76] Mr Rebecca Murray the payroll officer for Eaton gave evidence that in the last 6 months of the employment of Ms Downs she had been on the receiving end of numerous abusive telephone calls from her. Ms Murray said that Ms Downs would make complaints that were almost always found to have no substance. Ms Murray said in her dealings with Ms Downs she found her to be intimidating and abusive, so much so that other staff could hear Ms Downs over the phone. Ms Murray said invariably she would inform Ms Downs that she could no longer participate in the call as Ms Murray was upset and Ms Murray would hang up.
[77] Ms Murray said sometimes this would occur mid-sentence while Ms Downs was yelling at her. Ms Murray said often Ms Downs would then have her mother call, and in one of those calls Ms Murray requested that Ms Downs not call the office again due to the abusive way she continually treated the office staff. 39In her oral evidence Ms Murray described crying her eyes out after being intimidated and bullied by Ms Downs over the phone to the point where she hung up the phone mid-sentence. 40 Ms Murray said she received 5 or 6 separate calls from Ms Downs. 41
[78] Ms Downs claimed she only rang Ms Murray twice, once after she had left employment for her separation certificate. 42 Ms Downs described Ms Murray’s evidence as lies. 43
[79] Ms Theuerkauf gave evidence that it was made clear to Ms Downs she was hired to work at QAS, her induction materials referred to QAS as the site she was hired to work, and that she advised Ms Downs the QAS contract expired and was up for renewal in November and there was no guarantee of renewal. 44
[80] As set out above Ms Cameron’s evidence including that Ms Downs raised her voice angrily, and continued to yell aggressively at Mr Simpson, 45 and further that Ms Downs told her that she had abused Mr Simpson later that night.46 This evidence was not challenged by Ms Downs when Ms Cameron gave her oral evidence.47
Conclusion
[81] Ms Murray, the Payroll Officer gave clear and cogent evidence about having been on the receiving end of numerous abusive phone calls from Ms Downs. She was adamant about this in the witness box and did not waiver in her evidence. Her allegations received support by Mr Smits who gave evidence about this having been an issue he was aware, and that Ms Downs had been disallowed from contacting the administrative staff due to her abusive and aggressive tone of prior to the termination. 48 Ms Downs response to these allegations was to dismiss Ms Murray’s evidence as lies.
[82] Mr Simpson was also a strong witness for the Respondents case, although giving evidence subject to an order to attend. His oral evidence remained consistent with his lengthy statement. In fact Ms Downs did not go to great lengths when Mr Simpson was giving his evidence to challenge his version of events. It was apparent from observing Mr Simpson he appeared genuinely bewildered by the behavior of Ms Downs toward him. This is to be contrasted with Ms Downs own evidence in regard to her own behavior directed toward Mr Simpson. Even on her own version of events, when viewed objectively her conduct appears to be out of all proportion with what would have been a reasonable reaction to the conversation on 22 October 2015 involving the two security officers and her mother. It was her own evidence that her mother did not agree that any offence should have been taken in regard to the conversation about the security cameras. This conversation appears to have erroneously triggered in Ms Downs mind a perception that she was in some way under suspicion for theft. Objectively it hard to see how Ms Downs arrived at that view.
[83] It was Mr Simpson’s evidence that he did not even make the remarks back on 22 October that Ms Downs attributed to him and that appears to have been the catalyst for this whole unfortunate affair, and in fact it was Mr Bruinsma who made the comments that Ms Downs took offence too. Despite this, nearly two months later he apologised to Ms Downs for comments he said he didn’t make in an attempt to move past the issue. Ms Downs in turn on her own evidence escalated the issue, firstly, by later that night of 15 December deciding to approach Mr Simpson for the sole reason of telling him that she had decided not to accept his apology, and secondly by continuing on with the matter the next night.
[84] Ms Downs handed a written letter to Mr Simpson at the commencement of the shift on 16 December making claims that Mr Simpson contended, and I am inclined to accept were not correct.
[85] On Mr Simpson’s version Ms Downs then proceeded to act aggressively toward him when he approached her with Ms Cameron as a witness about the letter, and later in the night sought a further confrontation with him about the matter, telling him he was in ‘big trouble’ and she was ‘going to the top’, and on Mr Simpson evidence abusing him. 49 On Ms Cameron’s evidence Ms Downs told Ms Cameron directly later that night that she had in fact abused Mr Simpson.
[86] Having considered Ms Downs own evidence, I am left with the impression of someone who is unlikely to have a reliable or measured recollection of facts concerning the relevant events. When contrasted to the evidence of the other witnesses, and the manner in which their evidence was given, where there are inconsistencies between the evidence of Ms Downs and the other witnesses for the Respondent, I prefer the evidence of the witnesses for the Respondent.
[87] In summary the evidence includes that Mr Simpson had put in his incident reports concerning Ms Downs to his employer CAP Security on 15 and 16 December, CAP Security passed these on to QAS for whom CAP Security were a contractor, and QAS contacted Mr Smits at 11.10am on 17 December and had a separate discussion with Mr Smits about the matters that were in the email sent that day to him by QAS about the incident the previous night.
[88] The context was a security guard who was not an employee of Eaton calling for ‘back up’ and Mr Smits employee Ms Downs having been banned from the site. Ms Cameron’s evidence which was not challenged at the hearing was that Ms Downs acted aggressively and yelled at Mr Simpson, and told Ms Cameron that on the same night on a separate occasion she had ‘abused’ Mr Simpson. Ms Cameron passed this information to Ms Hams who provided it to Mr Smits. Mr Simpson’s evidence was to the effect that he felt unable to continue to do his job without another security officer present given the conduct of Ms Downs at the time.
[89] Further Eaton’s client QAS had made it clear Ms Downs would no longer be allowed to return to work at the site and Mr Smits was made aware of that. Given Eaton had not had its contract with QAS renewed at the time and was on a monthly roll over pending a decision of QAS, there was a real prospect that the incident could impact on the reputation and profitability of the business. In the context of Ms Murray’s evidence about the previous behaviour of Ms Downs, and Mr Smits being aware of that, on top of the other evidence he had been made aware of corroborating the allegation, and the allegation was abusive behaviour directed at one of Eaton’s clients contractors, in all of the circumstances I am satisfied Mr Smits had a valid reason to terminate the employment of Ms Downs.
[90] Ms Downs was notified of the reason by email (in order that she would not report for work that evening) which she read before her next casual shift commenced, and also by letter of the same date. It is true Ms Downs was given no opportunity to respond to the reasons related to her conduct and it is apparent was denied procedural fairness in that regard as the decision to terminate her was made in absence of a response form her. Ms Downs had no opportunity to have any discussions regarding her dismissal so no opportunity for a support person to be present in any discussions arose. Section 387(e) is not relevant as the termination was for misconduct, and not performance related. Eaton’s Form F3 said it employed 260 employees at the time of dismissal. The submissions said it engaged 450. Either way Eaton cannot reasonably claim it is a small employer with limited resources to devote to understanding industrial laws. The evidence did support that the Respondent had provided an induction process for Ms Downs and its employee handbook was of a professional standard.
[91] Whilst it is my view Mr Smits should have given Ms Downs an opportunity to respond to the allegations that had been made against her before he terminated her employment, I am also satisfied given the state of the evidence had he done so it is most unlikely that it would have changed the decision. It is also the case in this particular matter that despite Mr Smits not knowing all of what is now known at the time, further evidence that has come to light after the termination only supports the conclusion that the dismissal was justified. Further, given the evidence of the nature of the engagement as casual and it being linked to the QAS site where the client refused to allow Ms Downs to return, had there been a delay for a day or even a few days before Ms Downs was given an opportunity to respond she would not have been paid during that time.
[92] Having weighed all of the considerations under s.387, I do not find the dismissal to have been harsh, unjust or unreasonable. On that basis the application is dismissed.
[93] I also make the observation that even had I found that the misconduct was not sufficiently serious to warrant termination, the nature of the engagement was casual, Ms Downs had been barred from the QAS site by the client, and on the Respondents evidence it’s casual employees were offered engagements linked to specific site contracts and it would not have had other casual work to offer her. In those circumstances any potential order for compensation could not have been a significant sum.
COMMISSIONER
Appearances
Ms Downs the Applicant
Mr A Bautovich from Kaden Boriss Legal for the Respondent
Hearing Details
2016
Brisbane
May
11 and 12
1 Cori Ponce v DJT Staff Management Services Ply Ltd PR994968
2 Exhibit 2 Witness Statement of June Theuerkauf dated 4 May Paragraph 9
3 [2016] FWC 925
4 PN 483
5 Exhibit 1 Statement of Carolyn Downs paragraph 22 - 27
6 PN 499-502
7 Exhibit 7 Statement of Stephen Simpson Paragraph 102
8 Exhibit 7 Statement of Stephen Simpson Paragraphs 11-25
9 Exhibit 7 Statement of Stephen Simpson Paragraph 34
10 PN 512
11 Exhibit 1 Statement of Carolyn Downs paragraph 57
12 PN 518
13 PN 526
14 PN 536
15 Exhibit 1 Statement of Carolyn Downs paragraph 66
16 Exhibit 7 Statement of Stephen Simpson Paragraph 54
17 Exhibit 7 Statement of Stephen Simpson
18 Exhibit 7 Statement of Stephen Simpson Paragraph 61
19 Exhibit 7 Statement of Stephen Simpson Paragraph 77
20 Exhibit 7 Statement of Stephen Simpson Paragraphs 81-84
21 Exhibit 7 Statement of Stephen Simpson Paragraph 100
22 Exhibit 7 Statement of Stephen Simpson
23 PN 705
24 PN 712
25 Exhibit 3 Statement of Tai-Ling Hams dated 18 April 2016 Paragraph 21
26 Exhibit 3 Statement of Tai-Ling Hams dated 18 April 2016 Paragraph 20
27 PN 1175
28 PN 1179-1183
29 ex 5 attachment BS 1
30 Ex 5 para 18
31 PN 1239
32 PN 1259
33 PN 1267
34 PN 1270
35 PN 1283
36 Exhibit 5 Statement of Bert Smits dated 18 April 2016 Paragraph 30
37 Exhibit 5 Statement of Bert Smits dated 18 April 2016 Paragraph 31
38 PN 1465-1468
39 Exhibit 9 Statement of Rebecca Murray Paragraph 2-7
40 PN 1762
41 PN 1726
42 PN 821
43 PN 829
44 Exhibit 2 Witness Statement of June Theuerkauf dated 4 May Paragraph 5-9
45 Exhibit 10- Statement of Michelle Cameron Paragraph 16-18
46 Exhibit 10- Statement of Michelle Cameron Paragraph 36
47 PN 1829-1835
48 Exhibit 5 Statement of Bert Smits dated 18 April 2016 Paragraph 31
49 PN 1655
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