Catherine Belsham v Lifestyle Brilliance Building Maintenance

[2021] FWC 1042

[2021] FWC 1042

FAIR WORK COMMISSION

EX-TEMPORE DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Catherine Belsham
v
Lifestyle Brilliance Building Maintenance
(U2020/14929)

DEPUTY PRESIDENT BULL SYDNEY, 26 FEBRUARY 2021

Application for an unfair dismissal remedy - Small Business Fair Dismissal Code followed - application dismissed.

[1] This matter was heard before me on 18 February 2021. Following the hearing on 18 February 2021, I adjourned to later that day deliver my decision on transcript. As advised at the time, a published decision would issue; this is now the published version of the decision, edited for style and clarity. 1

[2] In this application Ms Catherine Belsham claims that she was unfairly dismissed by the employer whom she named as Lifestyle Brilliance Building Maintenance and she has subsequently accepted that the true employer is Lifestyle Brilliance Australia Pty Ltd. The application was amended to reflect the correct employer pursuant to s.596 of the Fair Work Act 2009 (the Act).

[3] Ms Belsham represented herself and states that she was employed to perform cleaning and ground maintenance work on a full-time basis. The employer was represented by Ms Meillie Wong, the respondent’s Managing Director.

[4] The employer is in the industry of cleaning and gardening services provided to strata schemes. It is not in dispute that the employer is a small business as defined under the Act by employing only three employees. It therefore relies on the Small Business Fair Dismissal Code in defending the unfair dismissal claim.

[5] With respect to the relevant legislation, s.394(1) of the Act provides that a person who has been dismissed may apply to the Fair Work Commission (the Commission) for an order under Division 4 granting a remedy for unfair dismissal, and s.385 of the Act goes on to say that:

“S.385 A person has been unfairly dismissed if the Fair Work Commission is satisfied that:

(a) the person has been dismissed; …”

(there is no dispute between the parties that that has occurred).

[6] One of the criteria to establish unfair dismissal states that the dismissal was not consistent with the Small Business Fair Dismissal Code, (the Code) which as I have stated is a defence (having complied) that the employer relies upon to have the unfair dismissal claim dismissed.

[7] Section 396 of the Act requires that before considering the merits of an application for an unfair dismissal, the Commission must decide a number of threshold issues. Those threshold issues include whether the dismissal was consistent with the Code. 2

[8] Thus, in accordance with s.396 and in particular s.396(c), which I have just referred to; before considering the merits of the application in this matter under s.387 of the Act, the Commission must first decide whether the dismissal was consistent with the Code which is found at s.388(2)(a) of the Act, and if the dismissal is consistent with the Code then the dismissal cannot be held to be unfair.

[9] While I am not convinced that either party is that familiar with the Code, a copy was provided to the parties at the commencement of the hearing. The Code states in cases other than summary dismissal that a 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 that the employee knows the employer’s job expectation.

[10] Under the heading of procedural matters under the Code it is stated that:

“a small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to the Fair Work Commission, including evidence that a warning has been given,(except in cases of summary dismissal). Evidence may include a completed check list, copy of the written warning(s), statement of termination or signed witness statements.”

[11] In this case there were unfortunately no signed or indeed any witness statements provided by either party.

Applicant’s evidence

[12] Ms Belsham states that she was unfairly dismissed and relies on her statement which was filed on 7 January 2021.

[13] Ms Belsham has stated that she commenced her employment in November 2018, which is not in dispute, and it appears on the evidence and the submissions made, that at least during the first year of her employment her work record was satisfactory to the extent that in October 2019, she received a pay rise. However, on 9 November 2020, Ms Belsham attended her annual review with Ms Wong, which unfortunately ended with Ms Belsham’s termination of employment.

[14] Ms Belsham states that on 9 November 2020, she arrived at the workplace office around 9 am when Ms Wong told her that she was having her annual review. She states that Ms Wong rated her work as deficient and below standard which resulted in her being shocked and insulted. As a result, she felt the need to have a break and compose herself as she was somewhat rattled. Ms Wong started to get louder and angrier in her tone, as she walked down the stairs Ms Wong was yelling at her and stated that if you walk out the door it would be her last and final warning and that she would terminate her employment.

[15] Ms Belsham states she went outside to calm herself down and compose herself, and once she thought that she had composed herself she went back to finish the annual review/counselling. Upon returning, Ms Belsham states that she asked for a pay rise, which was refused, and Ms Belsham states that Ms Wong’s behaviour became unreasonable and that she said to Ms Wong that she would not quit, and in her own words stated that she said to Ms Wong:

“So you Meillie can SACK my arse.” 3

[16] As she was walking down the stairs again, Ms Wong was yelling at her and said that if she walked out the door that would be her last and final warning and she would terminate her employment, and as she walked out the door, Ms Wong stated she wanted her three uniforms and shirts back.

[17] Ms Belsham states that later that day she texted Ms Wong asking whether she had been terminated and Ms Wong responded that she had emailed her termination notice.

Respondent’s evidence

[18] Ms Wong submits that the employer has complied with the Code, and in particular on 28 August 2020 that she provided Ms Belsham a written notice of warning which made a number of accusations in respect to her work performance. The warning letter of 28 August 2020 was titled, “Notice of first warning and breach of employment contract”, and commences by saying:

“Following our discussion today in relation to performance issues with your appointment I hereby issue your first formal warning of termination of employment.”

[19] As stated, the warning letter refers to numerous performance issues, some of which I will briefly raise. It was alleged that Ms Belsham:

•  failed to provide cleaning and gardening services in an efficient and timely manner;

•  failed to provide service of client sites when requested to by management;

•  failed to adequately report to management at the completion of her tasks under direction to the satisfaction of the client site management committees as per instructions provided by management;

•  used belligerent and hostile language in resisting counselling of management; and

•  was recalcitrant in relation to persistent verbal warnings from Ms Wong regarding the wearing of inconsistent clothing with uniform requirements which has presented challenges to the proper performance of her duties through an open act of defiance of her contractual obligations and her verbal warnings.

[20] Finally, the letter of warning of 28 August 2020 states that Ms Belsham used inappropriate language in communication with management during counselling sessions, which indicated her unwillingness to receive counselling instruction leading to a correction in performance issues. The correspondence concludes by stating:

“To address the issue of your ongoing problem with the company I request you address the above performance and attitude problems.

This is your first formal warning.”

[21] On 9 November 2020, Ms Wong states that it was her intention to provide a second performance or written performance warning via an annual review meeting held with Ms Belsham, where Ms Wong was to discuss the performance issues as they still existed, however, the meeting ended abruptly with Ms Belsham’s dismissal.

[22] Ms Wong states that the performance issues that were raised with Ms Belsham included a number of issues, which again I do not wish to repeat all of, but include that:

•  there had been no improvement since the first warning letter that was issued on 28 August, the work ethic and behaviour of Ms Belsham has worsened;

•  she had continuously shown a lack of interest towards work and demonstrated poor leadership;

•  her bad behaviour towards the manager had worsened;

•  on several occasions she had demonstrated a lack of interest when the daily tasks were being delegated during morning meetings; and

•  improper use of a mobile phone and constantly calling a radio station during working hours.

[23] Ms Wong stated that at the end of or during the annual review meeting Ms Belsham refused to accept the second warning notice and refused to make necessary improvements and to rectify the performance issues which were raised, some of which I have repeated. As a result, Ms Belsham walked off during the review meeting and requested the company terminate her and Ms Belsham left the office at around 9:36 am.

[24] Ms Wong states that the employer had no choice other than to terminate Ms Belsham’s employment effective immediately.

Conclusion

[25] It is clear on the evidence and the written documentation given to the Commission and marked as exhibits that Ms Belsham was given a number of verbal warnings concerning her performance, and also provided with numerous opportunities to improve her performance.

[26] While there was no intention for her to be dismissed on 9 November 2020, during the annual review, it was not until Ms Belsham in her own words said to Ms Wong:

“you can SACK my arse”

that the termination occurred.

[27] While Ms Belsham’s employment ended immediately on 9 November 2020, she was, as agreed between the parties paid, (although Ms Belsham states belatedly) three weeks’ notice in lieu of working out her notice.

[28] The dismissal related to her work performance and attitude.

[29] I am satisfied having heard the evidence today that based on the applicant’s work performance and conduct, a valid reason for her dismissal existed. The animosity of Ms Belsham towards Ms Wong was clearly evident in the manner in which she conducted her case today.

[30] In addition to Ms Wong’s evidence of continuous verbal warnings she gave to Ms Belsham, the written warning of 28 August 2020 advising of a need for a performance improvement, without which she may be dismissed, was tendered as evidence.

[31] The written warning is evidence that the element of the Code requiring a warning to be provided to an employee prior to termination for poor performance was met.

[32] The evidence indicates that Ms Belsham was given a warning and she was advised and put on notice that she needed to improve, and indeed was provided with an opportunity to do so.

[33] Unfortunately, this did not occur to the satisfaction of Ms Wong, which resulted in the first instance the concerns being raised at the annual review and subsequently her dismissal at the same meeting.

[34] The Code provides small business employers with a less stringent requirement in respect of the procedure upon which to initiate an employee’s dismissal than may otherwise apply. If the decision to dismiss is consistent with the Code it is a complete defence to a claim of unfair dismissal.

[35] On the basis of the comments I have made, I find that the dismissal of Ms Belsham was consistent with the Small Business Fair Dismissal Code. Hence the application for an unfair dismissal remedy must be dismissed.

[36] The matter is otherwise adjourned.

DEPUTY PRESIDENT

Appearances:

C Belsham on her own behalf

M Wong on behalf of the respondent

Hearing details:

2021

18 February

Printed by authority of the Commonwealth Government Printer

<PR727300>

 1   See extra curial publication (1997) 9 Judicial Officers’ Bulletin, per Gleeson CJ at 25

 2   S.396(c)

 3   Email statement of 7 January 2021