Catherine Allan v Lane Cove Retirement Units Association Ltd T/A Pottery Gardens Retirement Village

[2016] FWC 7504

[2016] FWC 7504 [Note: An appeal pursuant to s.604 (C2016/6699) was lodged against this decision - refer to Full Bench decision dated 3 February 2017 [[2017] FWCFB 722] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Catherine Allan
v
Lane Cove Retirement Units Association Ltd T/A Pottery Gardens Retirement Village
(U2016/8798)

COMMISSIONER MCKENNA SYDNEY, 21 OCTOBER 2016

Application for relief from unfair dismissal.

[1] On 10 August 2016, Catherine Allen (“the applicant”) made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) in which she sought an unfair dismissal remedy concerning her dismissal by Lane Cove Retirement Units Association Ltd T/A Pottery Gardens Retirement Village (“the respondent”).

[2] The respondent conducts a business which trades as Pottery Gardens Retirement Village, being a self-care retirement village. It is a charity run by a board of volunteer directors. The applicant commenced employment with the respondent on 11 June 2015 as its Administration Officer on a permanent part-time basis, with contracted hours of 16 hours a week. The applicant reported to the respondent’s only other employee, namely the Administration Manager (initially Mark King until 7 April 2016; subsequently Brian Samson from about 23 May 2016). The applicant’s employment was terminated during a meeting on 5 August 2016 with a payment in lieu of notice. A letter advising of the termination of employment that was given to the applicant read in part:

“The purpose of this letter is to confirm the outcome of a recent review by Lane Cove Retirement Units Association Ltd (the employer) of your performance.

Regretfully we have taken the decision to terminate your employment.

This will be effective immediately and we will pay you two weeks’ notice in lieu of attendance.

We have taken this decision for several reasons, but in particular:

• your not having followed proper requests to seek authority for the engagement of contractors and/or the incurring of costs to the employer, most recently this week with an Antennae contractor attending the property at your request and demanding payment from Mr Samson of which he had no knowledge.



• Your knowledge of Quick books accounting system and requirements being less than desired, and it being a key part of your role.

Due to your employment ending, you will be paid wages in accordance with the regular pay cycle; and at or prior to the next pay cycle we will forward to you the two weeks’ pay for the notice in lieu of attendance, and any accrued annual leave entitlement.

Your superannuation will be paid up to and including your last day of employment.

We thank you for your contribution during your employment with us. If you require a statement of employment this can be provided by the Administration Manager on request.”

[3] The respondent raises an objection to the application on the basis the dismissal was consistent with the Small Business Fair Dismissal Code (“the Code”), whereas the applicant contends the dismissal was not Code-compliant and that she should have an order for compensation in her favour with respect to an unfair dismissal remedy.

The Code

[4] Section 385 of the Act provides as follows as to when a person has been unfairly dismissed:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

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

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

[5] Among other matters, the Code relevantly provides (as to non-summary dismissals) as follows:

“Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.”

[6] While it is the case that concern was held by the respondent about the applicant, the evidence adduced does not allow a conclusion the dismissal was Code-compliant. Here, it is unnecessary to consider each component of the Code in the context of the (considerable amount of) evidence and the submissions, because the evidence indicates the applicant was not given a reason that she was at risk of being dismissed for reasons of conduct or capacity to do her job and, for example, nor was she given any warning that she risked being dismissed if there was no improvement.

[7] Otherwise, there is no issue, and I find for the purposes of s.396 of the Act, that that application was made within time; the applicant was a person protected from unfair dismissal; and the dismissal did not involve any matter concerning a genuine redundancy.

[8] The respondent’s objection to the application on the basis of compliance with the Code is dismissed.

Consideration – harsh, unjust or unreasonable

[9] Despite what was, with respect, an apparent misapprehension as between the representatives in the event there may be a finding that a dismissal was not Code-complaint, the parties were invited to address on matters relevant to s.387 of the Act, and they did so during the proceedings against the background of the evidence they had already adduced. The principal reasons cited in the letter advising of the dismissal concerned, in short form:

(a) that the applicant incurred expenditure without proper approval or authorisation (“the first allegation”); and

(b) that the applicant’s knowledge concerning the accounting component of her role was “less than desired” (“the second allegation”).

[10] By way of background, the applicant was employed by the respondent for about 14 months. The applicant’s employment appears to have been without incident during the time she worked with the former Administration Manager, Mr King. Mr King gave the applicant a glowing probationary report and his evidence indicated that he considered the applicant to be an exemplary employee throughout the time they worked together to the cessation of his own employment with the respondent in April 2016. It was Mr King who had initially inducted the applicant into the duties of her Administrative Assistant role and, with the assistance of the respondent’s (external) bookkeeper, trained the applicant in the use of the accounting system used by the respondent, Quickbooks. For her own part, the applicant considered that throughout her period of employment she undertook the role more than satisfactorily, and gave various examples in her evidence.

[11] After Mr King ceased working for the respondent, there was a period of approximately six weeks during which the applicant was the respondent’s only employee. During this period, Tania Di Vito, the chair of the respondent’s board, occasionally worked on a volunteer basis in the office and assisted in relation to certain matters concerning the respondent’s operations.

[12] Around this time, the applicant made a strongly-worded formal written complaint to the board expressing concern about matters including what she considered to be the burdens associated with her work, in circumstances where she had then been the only employee for a period of time between managers, and the personal effects on her. In that complaint, the applicant also set out a range of allegations or concerns about interactions with three board members. I do not recount in this decision the matters raised by the applicant, particularly as her complaint traversed matters concerning the applicant’s medical conditions. Among her concluding remarks, however, the applicant wrote:

“… I request that there be NO suggestion that I am incapable of doing the job. I know my work has been of a good standard, and under less hostile circumstances I would have coped perfectly well with the disruption and temporarily increased workload. …”
(capitalisation in original)

[13] The secretary of the board, Paul Hargrave, later wrote to the applicant in response to the complaint setting out certain matters, which I again do not recount. The letter concluded, however, by noting the applicant had returned to work and that the board looked forward to her continued engagement.

[14] Thus, it appears that the employment of the applicant was without incident at least until Mr King ceased his employment with the respondent. In effect, the only direct evidence in the proceedings was from Ms Di Vito as to concerns that began to emerge during the transition period before Mr Samson commenced as the new Administration Manager (albeit that there was also evidence about disquiet between the applicant and a board member/resident of the retirement village that arose in circumstances involving the applicant’s insistence that she purportedly should be entitled, as of right/as an incident of her employment role, to attend a residents’ meeting).

[15] Ms Di Vito asked if there was anything the applicant needed to do the job, in the period proximate to Mr King’s departure. Ms Di Vito also later undertook volunteer work in attending to administrative and other matters during the time when there was no manager, in conjunction with the work the applicant was undertaking. Ms Di Vito perused some of the invoices, and queried one invoice in particular. Ms Di Vito raised a concern that the invoice related to a payment that the respondent does not actually make for residents – namely, the installation of a new awning for a resident’s unit – and, it transpired, on a loan basis from the respondent as to the cost thereto. The applicant also informed Ms Di Vito there were “quite a few” such arrangements. Ms Di Vito advised the applicant that she wished to be given a copy of all the maintenance records for the preceding six months. The applicant’s evidence was that she does not recall this conversation with Ms Di Vito, but did not dispute that there had been a short conversation during which the applicant showed Ms Di Vito “a few random invoices”, and that Ms Di Vito had “asked a couple of questions” before leaving.

[16] Although the applicant cannot recall the conversation, involving Ms Di Vito’s request for maintenance records in the context of her expression of concern about one of the invoices and the applicant’s advice there were “quite a few” such arrangements, the applicant otherwise subsequently produced a table of maintenance records on 16 May 2016. Ms Di Vito thanked the applicant for that report in glowing terms. (Ms Di Vito was later to find there were, however, two (other) records concerning payments made by the respondent and also involving loans to residents. Moreover, neither the initial invoice that Ms Di Vito had queried nor the other two loan-related invoices appeared in the list of maintenance records the applicant provided to Ms Di Vito on 16 May 2016. For example, there was evidence in the respondent’s case of an invoice from an electrical company for a ceiling fan installation in the amount of $1,816.10, which was date-stamped and recorded as having been received and approved, and “entered” on 7 April 2016 – but it was not included in the applicant’s list of maintenance records. Ms Di Vito explained in her evidence that she did not know whether the loans were created and approved by the applicant, but she considered that the applicant knew these payments were being made and either knew or ought to have known the amounts were being paid without any approval/authority from the board. Ms Di Vito also considered that the applicant had appeared to her to be “embarrassed” about the matter when concerns about the payment were raised with her.)

[17] In early April 2016, Ms Di Vito said that she had next asked the applicant how to use Quickbooks for invoices and payments, and that the applicant had stated there was “a problem with the system” with residents being in credit. The applicant had added that she did not know what to do, but was hoping that the (incoming) Administration Manager would “step up” in that regard. Around this time, Ms Di Vito “relieved” the applicant of the need to progress the extra projects and also devised a “request form” (Resident Communication Form) for residents to complete in relation to requests for maintenance or complaints, to assist the applicant’s workload so as to remove resident-related interruptions and also to identify what works needed to be done. Ms Di Vito intended that the residents’ request forms were to come to her first. Ms Di Vito, rather than the applicant, could then manage expenditure of the respondent’s funds by approving expenditure of the respondent’s money. In the context of the introduction of the new request form, Ms Di Vito informed the applicant that all residents’ requests had to be made on the form and be sent to her, as should any other emergency-type requests (at least, it appears – although this was unclear – during the period pending the commencement of the new Administration Manager, so that someone other than the applicant alone was determining matters concerning expenditure). Despite the applicant’s evidence, I prefer Ms Di Vito’s evidence as to the conversation associated with the introduction of the request form. The applicant did not subsequently submit any request forms to Ms Di Vito, albeit it is unclear whether she was expected to do so following the commencement of Mr Samson. It is again unclear, in the absence of any direct evidence thereto, but it seems the applicant would not have been required to submit request forms to Ms Di Vito once Mr Samson commenced, because of matters contained in the applicant’s employment regarding consultation with the Administration Manager about certain matters.

The first allegation

[18] The contract of employment specified, in part, as the applicant’s key responsibilities, that she would be responsible for duties including the following:

“ Manage the receipt of requests for minor jobs and their allocation to the contracted Handyman service

• In conjunction with the Administration Manager issue job orders to contractors and supervise external contractors”

[19] Thus, the contract of employment provided as part of the applicant’s responsibilities to arrange for the allocation of “minor jobs” to the respondent’s contracted handyman service. Under that employment contract, it was the applicant’s responsibility or duty to deal with job orders to contractors, other than minor jobs involving the usual contracted handyman service, in conjunction with the Administration Manager. Approached another way, it was not within the scope of applicant’s responsibilities under the contract of employment to issue job orders to contractors, other than minor jobs involving the usual contracted handyman service, unless this was undertaken in conjunction with the Administration Manager. The question of (unauthorised) expenditure of the respondent’s money was plainly a somewhat sensitive issue, albeit a concern which was largely unspoken with the applicant apart from the initial conversation with Ms Di Vito which had resulted in her seeking a list of maintenance records and developing a request form concerning works sought by residents which was to be submitted to Ms Di Vito (at least, as I have noted, apparently until such time as Mr Samson commenced). As to this, the letter of dismissal read in part:

“Your not having followed proper requests to seek authority for the engagement of contractors and/or the incurring of costs to the employer, most recently this week with an Antennae contractor attending the property at your request and demanding payment from Mr Samson of which he had no knowledge.”

[20] The evidence indicated the applicant had arranged a contractor to undertake antennae work without prior consultation with Mr Samson and without his authority. Nor was there any ostensible authority that may have, for example, arisen from the applicant’s contract of employment - even if, as Mr King’s evidence indicated, he had previously, in effect, allowed more latitude to the applicant concerning the engagement of contractors (i.e. beyond the authority the applicant’s contract of employment with the respondent actually specified or envisaged). The antennae contractor was not the respondent’s contracted handyman service; and the evidence that the particular resident did not have the full range of all television channels (she only had reception for one channel) did not indicate the applicant reasonably would have needed to act without prior consultation/authorisation to address some urgent or pressing exigency. The applicant sought to explain the reasons why she arranged the antennae contractor without any consultation or approval (stemming, for example, from her concern about a duty of care to the resident and the fact she had otherwise mentioned the matter in an email), but the fact remains that the unilateral engagement by the applicant of the antennae contractor was the subject of neither consultation with her manager nor authorisation by him (or anyone else).

[21] I would not be inclined to the view that the issue of prior authorisation concerning the engagement of the antennae contractor would, in and of itself, have given good grounds for the dismissal of the applicant in circumstances where there was, for example, evidence that the applicant had previously communicated to Mr Samson that she had engaged at least one contractor without prior consultation/authority and no issue was raised at that time concerning the applicant’s actions. Moreover, it was only after the applicant had engaged the antennae contractor that Mr Samson sent an email indicating to the applicant that, in future, it would be best if she first raised such matters with him; and the applicant responded affirmatively to Mr Samson’s correspondence.

The second allegation

[22] A basic incident of the applicant’s responsibilities as Administration Officer was book-keeping/record-keeping, including the use of the Quickbooks accounting system. This was recorded in the applicant’s contract of employment as follows:

“Key responsibilities: In this role you will be responsible for the following duties:
…

• Issue invoices using Quickbooks to residents and reconcile payments against invoices and follow up late payments



• Processing creditor invoices including checking for correct amounts against work claimed or goods supplied, entry to Quickbooks approving payments for authorisation by bank account signatories



• Reconcile bank accounts at least monthly …”

[23] When the applicant was initially employed, she did not have any experience in the use of Quickbooks. Mr King wrote, in his performance review in connection with the applicant’s initial probationary period, among other matters:

“Cathie when first employed did not have any experience in the aged care sector or with the use of Quickbooks. Despite this she quickly made progress in firstly understanding the sector and the needs of the residents and secondly developed the skills to use QB effectively and to meet the needs of her role.”

[24] In that probationary performance review, Mr King further wrote as to the objectives for the next 12 months that, as to accounting systems, the applicant should undertake training “in advanced use of the Quickbooks program to facilitate taking on more of the tasks currently done by the Administration Manager and the [external] Book Keeper.”

[25] Despite the description by Mr King in his probationary review as to the aim of expanding the applicant’s role concerning the respondent’s accounting systems in relation to more “advanced” matters, the applicant was, with respect, from the time of Mr King’s departure to the time leading to her dismissal apparently unable to master even some of the more rudimentary aspects of what were described in her employment contract as being key responsibilities. That is, the evidence indicated that the applicant either did not have the capacity or the skills to use Quickbooks effectively and/or the applicant otherwise was simply failing to make correct or accurate entries in that system. This may be highlighted from aspects of the evidence:

• As I have noted earlier, the applicant was unable to assist in relation to certain Quickbooks-related information requested of her by Ms Di Vito at the time when the latter was trying to manage and/or assist in a volunteer capacity. The applicant also explained to Ms Di Vito that the residents’ records were incorrectly in credit, that she did not know how to resolve the matter, and she hoped that Mr Samson would be able to “step up” once he started. The applicant also failed to produce in the documentation she generated, following Ms Di Vito’s request, records concerning at least three loan-related invoices.



• Following his appointment as Administration Manager, it became apparent to Mr Samson that the residents’ accounts, that included the accounts receivable ledger, had not been done properly or at all since at least March 2016. Although Mr Samson is a certified practising accountant, he was personally entirely unfamiliar with the use of the particular program used by the respondent, namely Quickbooks. The applicant provided Mr Samson with some information concerning the use of the system. Mr Samson (apparently in conjunction with the external bookkeeper) reconstructed the Quickbooks accounts and re-entered all incorrect data and bank reconciliation coding. While there was dispute as to the specific content as to what was said around this time, it appears to emerge as common ground that the applicant acknowledged that certain bank reconciliation work simply had not been done at all in the time after Mr King had left (due, the applicant explained, to her own prioritisation of work when she was the respondent’s only employee) and, otherwise, the applicant acknowledged that she could not use Quickbooks without at least some level of assistance with certain matters.



• Mr Samson’s evidence was that he was “repeatedly required to perform the tasks of reconciling accounts and correcting ledger entries”, and he had also commented to the applicant on several occasions that she still seemed to be having difficulty reconciling the bank accounts – whereas the applicant’s evidence indicated she was not aware of “systemic incorrect ledger entries”. Mr Samson’s evidence continued that, upon his review of subsequent entries, the applicant continued to make errors – with the result he spoke to the applicant about every second week about the importance of correct reconciliation and also again showed the applicant how properly to perform the accounting tasks. The applicant’s evidence disputed Mr Samson’s characterisation of what had occurred. She suggested it was, for example, a matter of the two of them working cooperatively and addressing “bugs” that were in the Quickbooks system, but I preferred the characterisation by Mr King – which had as its underpinning that the applicant could not competently use the Quickbooks accounting system in performing a key responsibility of her role without assistance.



• As his time in the role progressed, Mr Samson became “more and more alarmed” about the applicant’s work. Mr Samson’s evidence, which I also preferred in this respect as against the applicant’s evidence thereto, was he particularly recalled that during one meeting on 21 July 2016, in which he was again providing training to the applicant for the requirements of her position, that a conversation ensued in which he asked the applicant if she had always had “trouble” reconciling the bank accounts and further queried whether the applicant was confident that residents’ payments were being allocated accurately. The applicant responded that, in the past, she had asked Mr King or the external bookkeeper to help her when she could not reconcile the bank accounts; and she next asked Mr Samson to show her how to allocate payments and match the payments to the invoices. Mr Samson reinforced to the applicant that she needed to ensure that payments were allocated to the correct account and noted that if the applicant did not match the correct payment the bank statements would not balance.

[26] After about 14 months in the position as the respondent’s Administration Officer, and even with the benefit of Mr Samson’s initial and ongoing identification and rectification of errors in the applicant’s entries, and further instruction to the applicant from Mr Samson concerning book-keeping, the evidence of email communications indicates that in the majority of instances to which reference was made in the proceedings the applicant was still unable to correctly or accurately undertake reconciliations. While Mr Samson’s evidence described his “alarm” about the applicant’s work, it is also pertinent to note that the applicant put matters more highly than Mr Samson’s description. One of the bank reconciliations prepared by the applicant had a “major discrepancy” of several thousand dollars. The applicant described Mr Samson as being “very upset”, particularly as he was due to present a financial report to the board. In consequence, Mr Samson worked on the accounts on days additional to his usual part-time days. On the applicant’s description, Mr Samson was “horrified” by what he discovered, and, among other matters, kept saying that the “books are a mess”. Despite what Mr Samson was uncovering about the accounts, he did not say anything to the applicant which she considered untoward or otherwise critical of her; she said he did not apportion blame. Elsewhere in her evidence, the applicant similarly referred to Mr Samson’s “helpful and friendly tone” which, the applicant considered, displayed no elements of the “frustration in my alleged lack of skills” that otherwise emerged from the flavour of Mr Samson’s evidence. The applicant’s own evidence about Mr Samson being horrified and the comments about the books being in a mess leads me to the view that there were indeed significant difficulties with the records keeping for which, for her part, the applicant had been responsible for over the period of more than a year.

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[27] The applicant’s evidentiary contention was that the reasons given for her dismissal “are fabricated and are denied”. The applicant’s evidence further indicated that it appeared to her that the respondent’s board of directors decided to dismiss her once the board perceived that the applicant “was no longer essential (after managing the village when for 6 weeks I was the only employee and after training the new manager).”

[28] Despite the matters raised in such respects by the applicant, I am satisfied there was a valid reason for the dismissal related to the applicant’s capacity (relevantly as to the applicant’s capacity to properly perform key responsibilities of her role as Administrative Officer). For the reasons I have outlined earlier, I have doubts, however, that the applicant’s conduct, in and of itself, would have given a valid reason for dismissal (relevantly as to incurring expense, at least in the instance concerning the antennae work, without consultation/authority). The evidence overwhelmingly indicates the applicant’s inability to properly undertake rudimentary aspects of her key record-keeping responsibilities as the respondent’s Administration Officer, at least in the period from about April 2016 to around the date of dismissal on 5 August 2016.

Whether the person was notified of that reason

[29] The applicant was notified of the reason for the dismissal in the respondent’s letter which advised of the termination of employment.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[30] On 5 August 2016, the applicant was informed by Ms Di Vito that there was to be a meeting later that afternoon with regard to her position. The meeting was attended by the applicant, Mr Hargrave and Ms Di Vito. In the meeting, and while there was dispute as to the specific content, there was at least some discussion around matters which were relied upon as grounds for dismissal. The applicant considered she was not given any “meaningful opportunity” to respond to allegations of poor performance and that, in effect, the first she knew of the allegations was during the meeting in which the dismissal itself ensued. The applicant’s evidence further indicated her understanding was that she would be given some written advice about those matters, albeit, as it transpired, that written advice was provided in the letter advising of the termination of employment which was handed to her during the meeting. The respondent’s case was that the applicant was given the opportunity to address the respondent’s concerns about the two principal matters, but declined to do so.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[31] There was no unreasonable refusal by the respondent to allow the applicant to have a support person present at the meeting on 5 August 2016. The applicant was invited to bring someone with her if the wished, but she did not do so.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[32] The evidence of both parties made it plain there was no prior warning given to the applicant about her unsatisfactory performance before the dismissal.

[33] The lack of warning requires some context. It is plain that the applicant could not satisfactorily perform key aspects of her book-keeping or record-keeping part of the job, and the applicant was the only person within the employ of the respondent who was actually charged with the responsibility of attending to such matters as set out in her position description. There was, for instance, no evidence that it was the responsibility of Mr Samson to personally attend to the performance of the accounts-related Quickbooks tasks and reconciliations described in the applicant’s position description as being included in her key responsibilities.

[34] No warnings were given to the applicant by Ms Di Vito, who took a distinctly non-confrontational approach to the matters giving rise to her concerns. That is, upon becoming aware of the first questionable invoice Ms Di Vito requested a copy of relevant records from the applicant so she could review them. Further, Ms Di Vito put in place the new request form concerning approvals - effectively for reasons including closer vetting of expenditure of the respondent’s funds. Ms Di Vito did not otherwise escalate with the applicant any matters in relation to her emerging concerns. Moreover, while Ms Di Vito thought it was “odd” that the applicant could not show her how to use Quickbooks to issue invoices and record payments received, and the applicant had also stated to her that there was a problem in the records that the applicant hoped might be resolved by the incoming Administration Manager, Ms Di Vito left matters where they then lay; she expected that the applicant would take appropriate steps. Ms Di Vito otherwise praised the applicant in an email, adopting what might be characterised as a positive reinforcement-type approach (albeit she was only later to learn that the maintenance records relevantly did not include any information about the loans-related works).

[35] In late-May 2016, Ms Di Vito advised Mr Samson that, while the board was aware of some issues with the applicant, Mr Samson should endeavour to maintain a positive relationship with the applicant for reasons including the small size of the respondent’s office. Accordingly, Ms Di Vito advised Mr Samson that it would be better if he did not performance-manage the applicant, but, rather, he should encourage and train her as best he could to maintain office “harmony”. Ms Di Vito added that if anything needed to be done, that would be attended to by the board to protect him. In this regard, Ms Di Vito’s oral evidence further indicated that the board did not want to embroil Mr Samson in relation to matters which had preceded his appointment.

[36] When Mr Samson subsequently had conversations with Ms Di Vito about matters including what he personally had by then come to consider as involving the applicant’s evasiveness about her work, Ms Di Vito advised Mr Samson she would consider what to do about the applicant. In particular, in circumstances where Ms Di Vito had advised Mr Samson that she did not consider it appropriate that he personally should performance-manage the applicant, she asked him to “work with her to keep the office happy”.

[37] On about 4 August 2016, Ms Di Vito informed Mr Hargrave that the applicant was “just not improving” (and that Mr Samson was “unhappy”). Relevantly, Mr Hargrave responded that this should be put to the applicant and if she could justify continuing “we may try, if not she has to go”.

[38] No warnings were given to the applicant by Mr Samson, despite his alarm about the applicant’s performance of her work, given what Ms Di Vito had conveyed to him about not performance-managing the applicant, and endeavouring to work harmoniously with the applicant to keep the office happy. Mr Samson demonstrated considerable managerial forbearance concerning the applicant’s lack of capacity or aptitude even at a time when, for example, Mr Samson was attending work on additional days to endeavour to correct and reconcile what the applicant could not reconcile in the accounts.

[39] I again note the applicant herself described Mr Samson as having been “horrified” by what he discovered as to the state of the records, being records for which the applicant had been personally responsible for at least a year. I do not, in passing, accept the submissions for the applicant that the respondent’s performance-related concerns of 5 August 2016 came as “a bolt out of the blue” for want of prior warning. The applicant cannot reasonably have been oblivious to the existence of concerns about the way she had attended to her accounts-related responsibilities despite Mr Samson’s uniformly cordial approach in his dealings with the applicant.

[40] It was on the advice of the volunteer chair of the board as to her wish for a happy workplace that Mr Samson, as the applicant’s manager, was effectively precluded from taking a step such as warning the applicant about her work performance, or even passing comment adversely upon it to her - as Mr Samson might otherwise reasonably have been minded to do, given that the applicant reported to him and he was alarmed about her work and the poor state of the record-keeping for which she had responsibility in her employment with the respondent.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[41] The respondent employed only two part-time employees and is run by a volunteer board of management. I consider that the size of the enterprise had a significant impact on the procedures followed in effecting the dismissal. It was the respondent’s wish, communicated to Mr Samson through Ms Di Vito, to encourage and train the applicant - rather taking a more direct approach of warning her that she would be dismissed if her work did not improve. The nature of a workplace with only two employees did not lend itself to processes of formal warning and performance management of a type that may be available in a larger workplace. The procedures followed did, however, involve Mr Samson otherwise providing what I accept was considerable effort to remediate the applicant’s account-keeping and to assist and advise her about matters including what needed to be done to achieve reconciliations.

The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[42] The applicant’s case pointed to Mr Samson’s employment background in criticising, for example, the procedural defect of a lack of managerial warning preceding the dismissal. However, there is nothing in the evidence to indicate that Mr Samson was involved in advising upon or determining the procedures followed by the board. On the contrary, Ms Di Vito had advised Mr Samson that it was she who would “work out what to do” and her evidence also made it plain that she did not wish to have Mr Samson personally involved in matters concerning the applicant’s employment apart, for example, from the goal of having a happy and harmonious workplace.

[43] The applicant referred also to the fact that Mr Hargrave is a solicitor, apparently with some background in appearances before industrial tribunals. Mr Hargrave was in attendance at the meeting and it was he, rather than Ms Di Vito, who spoke to the applicant in the meeting on 5 August 2016. The already-prepared letter of dismissal, on behalf of the board and under Mr Hargrave’s signature, was handed to the applicant after what was, it is common ground, a short meeting. While preparation of a letter advising of dismissal in advance of a meeting to discuss employment matters typically raises all its own issues of concern in terms of procedural fairness and pre-determined outcomes, I accept Mr Hargrave’s evidence and the related submissions for the respondent to the effect that the preparation of the letter was a type of contingency and it had not been finally determined that the dismissal would be effected in the meeting because matters would turn on what unfolded in the discussions.

[44] Mr Hargrave’s evidence was that he had prepared the termination letter because, if the meeting proved to be unsatisfactory, he “did not want to prolong the difficulties in the office”. Here, the respondent’s evidence, which I accepted, indicated that when it was put to the applicant that there were concerns mainly around her not being able to use the accounting system, especially Quickbooks, and spending money without authority, and the applicant was asked if she had anything to say, her response was: “Well is there any point?” When it was stated to the applicant that she was being given an opportunity to respond, which was open to her to take or otherwise, that the applicant stated: “I don’t see any point”. It was at that stage that the applicant was then advised by Mr Hargrave: “OK, then I’m afraid we have to terminate your employment. You do not need to work out your notice …”. The applicant was apparently given the letter confirming the same.

Any other matters that the Commission considers relevant.

[45] Mr King, the applicant’s representative in her application for an unfair dismissal remedy, was formerly employed by the respondent. Part of Mr King’s own evidence went to loans-related matters, as well as other matters. Mr King’s evidence was that it was he who approved the loans to residents for works on their own residences concerning balcony awnings and ceiling fans. While Mr King approved the loans for works to residents’ units, the records the applicant provided to Ms Di Vito in response to her request for the maintenance records did not disclose, or properly or informatively disclose, the loans-related records - albeit the applicant had sent Mr Samson an email about invoicing which, among other matters, commented that two residents were paying more than the rent because they were paying-off, respectively, the costs of an awning installation and a ceiling fan (and advising that one of those matters was invoiced separately from his rent).

[46] The applicant’s evidence, I am bound to say, did not satisfactorily address why the information the applicant provided following Ms Di Vito’s request for records - in the specific context of Ms Di Vito having raised concern about one particular invoice which appeared to involve the making of a loan to a resident without the authority of the board - did not include information concerning loans-specific works. The applicant seemed to suggest in her evidence that she separately recorded loan-specific works, although where such matters were recorded or entered is unclear. It is also unclear why, given the applicant’s evidence as to her separate recording of such expenditure, the applicant did not provide any such discretely-recorded information to Ms Di Vito.

[47] The existence of loans and/or repayments of loans initially came to the attention of Mr Samson when a resident presented at the administration office to make a repayment of $100.00 in cash towards a loan for a ceiling fan. In early-August 2016, Mr Samson later found in the accounts some form of record concerning a loan of $1,060.00 to another resident which the resident was permitted to repay at $20.00 a week over four years, interest-free. Mr Samson said, as of the time of the hearing, it was still unclear how many such unauthorised loans had been made, but he considered that the loans had been “done by or with the express knowledge of the applicant and not reported to me or the board”. Moreover, there was also a suggestion, which fell from Ms Di Vito’s examination, that the applicant may have received cash repayments concerning loans but had not receipted such amounts.

[48] Some questions put in cross-examination squarely went to the issue of whether the applicant had engaged in deliberate concealment concerning the loans, which was denied. It is appropriate, therefore, to record in this decision there is no evidence which established the applicant engaged in deliberate concealment concerning the loans for reasons, for example, involving any impropriety. Notwithstanding the thrust of some of the questions put in cross-examination, the respondent did not seek to rely on any such matter in the reasons given to the applicant for the dismissal and nor, in these proceedings, did the respondent invite the Commission to draw any inferences in such respects.

Conclusion

[49] I am not satisfied that the applicant has established a case that her dismissal was harsh, or unjust, or unreasonable. While the dismissal was characterised by what typically are considered as procedural deficiencies in terms of process (including the lack of prior warning and the preparation of a letter of dismissal before the meeting on 5 August 2016), such deficiencies are not sufficient to render this dismissal harsh, unjust or unreasonable. I am satisfied the dismissal was sound, defensible and well-founded given the applicant’s demonstrated inability to competently perform key responsibilities concerning the routine incidents of accounts/record-keeping and associated reconciliations, despite assistance and instruction about such matters within the small business environment of the respondent’s operations.

[50] As such, an order dismissing the application issues with these reasons.

COMMISSIONER

Appearances:

M. King for the applicant.

P. Hargrave from the respondent.

Hearing details:

2016.

Sydney:

October 17

Printed by authority of the Commonwealth Government Printer

<Price code C, PR586562>