Christina Massaga v Activ Foundation Inc
[2020] FWC 4087
•19 OCTOBER 2020
| [2020] FWC 4087 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christina Massaga
v
Activ Foundation Inc
(U2020/158)
DEPUTY PRESIDENT BINET | PERTH, 19 OCTOBER 2020 |
Application for an unfair dismissal remedy – application dismissed
Introduction
[1] Ms Christina Massaga (Ms Massaga) has filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed by Activ Foundation Inc (Activ).
[2] Activ filed a Form F3 Employer Response, noting it had no jurisdictional objections to the Application.
[3] Ms Massaga declined to participate in conciliation therefore the Application was listed for determination. Taking into account the parties’ wishes and circumstances it was determined that a hearing rather than a determinative conference would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for hearing in Perth on 6 August 2020.
[4] Directions for the filing of materials in advance of the Hearing were issued to the parties on 26 March 2020 (Directions).
Permission to be represented
[5] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just. 1
[6] Both parties sought permission to be represented by a lawyer at the Hearing.
[7] Having considered the submissions of the parties leave was granted to both parties to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
Evidence
[8] At the hearing Ms Massaga was represented by Mr Steve Heathcote, a lawyer of APX Law (Mr Heathcote). Ms Massaga provided written and oral evidence on her own behalf.
[9] At the Hearing Activ was represented by Ms Rochelle Airey, of HWL Ebsworth Lawyers. The following witnesses provided written and oral evidence on behalf of Activ:
a. Mr David Robert Smith – Customer Operations Manager – North Metro Region (Mr Smith)
b. Ms Esther Ellen Keep – Team Leader (Ms Keep)
[10] Final written submissions were filed on behalf of Ms Massaga on 14 August 2020. Final written submissions were filed by Activ on 21 August 2020.
Background
[11] Ms Massaga commenced employment with Activ on or around 18 October 2013. During her induction she undertook training in relation to Activ policies and procedures. 2
[12] Relevantly to her current employment she holds a Certificate III qualification in Disability. 3 She also holds a Masters of International Finance from the University of Westminster in the United Kingdom and Masters of Business Administration in Finance and Banking from Curtin University.4
[13] Activ is one of Western Australia's largest providers of disability services. One of the services that it provides is supported accommodation for individuals living with intellectual disabilities. Activ employs staff to provide assistance to residents living in the supported accommodation. 5
[14] Mr Smith is the Customer Operations Manager, North Metro Region with oversight of 194 staff and 450-500 clients. Prior to this appointment he was employed by Activ for five years as the Occupational Safety and Health Manager. There are eleven supported accommodation residences located within the region for which Mr Smith is responsible. 6
[15] Ms Keep reports to Mr Smith and is the Team Leader responsible for two of the supported accommodation residences within Mr Smith’s region. One of these facilities is located in Innaloo and known as Langley. Langley is a triplex which accommodates 13 customers. Ms Keep is based at Langley. The residents at Langley are all women with intellectual disabilities ranging in age from 36 to 65. 7
[16] There are 25 staff working at Langley. Prior to being appointed as Team Leader Ms Keep had worked as a casual support worker at Langley with Ms Massaga. She reports that she has a good relationship with Ms Massaga and respects Ms Massaga’s skills as a support worker. 8
[17] Since 2015, Ms Massaga has been employed full time in the position of Overnight Support Worker. At the time of her dismissal she was working at one of the three shared care supported accommodation residences located at Langley (Langley 3) and reporting to Ms Keep. 9
[18] A day support worker works with customers on their day-to-day activities such as supporting with showers, cooking, getting them to their day placement or workplace, and supporting that person to live the best life that they can, as independently as they can. 10
[19] As an overnight support worker, Ms Massaga would work seven shifts a fortnight and would sleep at the house. Another staff member would be at the house with her until about 7:00pm and then Ms Massaga would be on her own with the clients. She would assist the clients with their dinner, help them go off to bed, give night medications then breakfast and morning medications the next day. If a client woke up in the night because they were unwell or for some other reason, Ms Massaga would get up and assist the client. 11
[20] At Langley 3 Ms Massaga was caring for four clients with varying degrees of intellectual disability. 12 To protect the privacy of those clients they are referred to in this decision as Client A, B, C and D respectively. Relevantly, Client A is a 36 year old lady with down syndrome. Client B is a 57 year old lady with an intellectual disability who also suffers from Prader-Willi syndrome which can cause overeating. Client B had reached a weight of 101 kilograms and Ms Yvette Antoinette (Ms Antionette) a day shift support worker who had been working with Client B for more than 30 years had in recent months been working with her to support her to lose weight.13
[21] In August 2019 Ms Antionette gave evidence into an investigation involving another support worker which resulted in the other support worker being issued with a written warning. Ms Keep says that she observed that following this incident the relationship between Ms Antoinette and Ms Massaga deteriorated. 14
[22] Mr Smith confirms that Ms Keep reported to him that Ms Antionette had complained of being bullied by a number of her colleagues, including Ms Massaga. 15
[23] Ms Massaga says that in September 2019, the mother of Client A asked Ms Massaga why her daughter was not being taken out on a Friday for physical exercise in accordance with the recommendation of her doctor. Ms Massaga says that she passed this query on to Ms Keep and on 27 September 2019 she met with Ms Keep and Ms Antoinette to discuss the query. Ms Massaga says that Ms Keep directed Ms Antoinette to start taking Client A out on Fridays. Later the same day Ms Massaga sent a detailed complaint about Ms Antionette’s conduct to the Activ Human Resource Department (HR). 16
[24] On Friday 1 November 2019, Ms Massaga accompanied Client B to the movies. The client wanted popcorn however Ms Massaga was not permitted to buy it for her because Ms Antoinette had changed the client’s eating plan. 17
[25] Ms Massaga asserts that the dietician and Client B’s sister had previously agreed that Client B could have popcorn when she went to the movies. Ms Massaga says that Client B agreed that Ms Massaga could raise this issue again with her family on her behalf. Ms Massaga says that when she returned to Langley 3 after the movie, she called Client B’s sister and put her on the loudspeaker so that Client B and Ms Massaga’s co-worker could hear. The conversation was documented in the communication book of the house. 18
[26] Ms Massaga says that on Sunday, 3 November 2019 during handover Ms Antionette asked her why a discussion had occurred with Client B’s family about Client B’s desire to have popcorn at the movies. Ms Massaga says that she explained that Client B wanted her choice back and that Ms Antoinette responded that Client B could not have popcorn because of the salt content. Ms Massaga says that she told Ms Antoinette that Client B’s family and the dietician both supported Client B having popcorn if she wished. 19
[27] On 3 November two emails were exchanged between Ms Antoinette and a dietician relating to the diet of Client B (3 November Diet Emails). Ms Antionette sent an email at 11:38am from the Langley 3 email address and received a reply from the dietician at 7:21pm. Relevantly, the reply from the dietician expressed concern that Ms Antionette appeared to indicate in her email that Client B was only receiving 900 calories per day.
[28] Ms Massaga says that during handover to her next shift a co worker told her that Client B had approached her regarding her rights and choices being neglected by Ms Antoinette, that later the same day she found Client B distressed about the issue of her access to popcorn. 20
[29] Ms Massaga says as follows: 21
“I became very concerned, so I asked her if she wanted me to make a report on her behalf to the head office, so that she could get help. [REDACTED] said yes, and I told her I would inform the head office on her behalf on Monday morning.
With the intention of going to head office the next day, as per [REDACTED] wishes, I prepared myself by forwarding some emails regarding [REDEACTED] diet to my work email account.”
[30] The emails Ms Massaga forwarded were those contained in the 3 November Diet Emails. 22 She also says that she printed copies to take with her the following day to Activ’s Head Office.
[31] On 4 November 2019 at 9:17am a reply was sent by Ms Antoinette from the Langley 3 email address explaining that the client was getting more than 900 calories to which the dietician responded at 9:51am (4 November Diet Emails). 23
[32] On 4 November 2019 Ms Massaga went to Activ’s Head Office and reported to Ms Janina Harland (Ms Harland), the Senior Complaints Officer, concerns she held that Ms Antoinette was mistreating Clients A and B. Ms Massaga provided Ms Harland with the 3 November Diet Emails in support of her allegations. Later the same day Ms Harland confirmed in writing the receipt of Ms Massaga’s allegations, informed her that Activ had commenced an investigation into the allegations and invited Ms Massaga to contact her if she required any further information before Ms Harland reported to her the outcome of the investigation. 24
[33] Concerned about the ongoing tensions between Ms Antoinette and other staff in Langley 3 Ms Keep decided to call a staff meeting. 25 On Thursday, 7 November 2019, Ms Massaga received a calendar invite for a meeting to be held on Monday, 11 November 2019, at 9am. Later that evening she emailed Ms Keep asking about the agenda for the meeting but did not receive a reply. She also emailed Ms Harland requesting that the meeting be delayed until the investigation into her allegations was completed. Ms Massaga explained that when she expressed her opinion at a previous staff meeting where concerns about staff treatment of clients was raised it led to her being counselled by HR and that therefore she was reluctant to have the meeting until her allegations were investigated.26
[34] On Friday 8 November 2019 after she finished her shift Ms Massaga went to Ms Keep’s office and says that she was told that the meeting was about staff conflict and that HR staff would attend the meeting. Ms Massaga says that she informed Ms Keep that Ms Harland was investigating allegations involving Ms Antoinette. Ms Keep later told her that the meeting would be postponed due to one staff member not being able to attend. 27
[35] Ms Harland subsequently met with Ms Keep to brief her about Ms Massaga’s allegations and show her the 3 November Diet Emails. Ms Keep was alarmed by the emails because they suggested that Client B was only receiving 900 calories per day. Ms Harland asked Ms Keep to obtain copies of all documentation relevant to the investigation. Without revealing that an investigation was underway Ms Keep asked Ms Antoinette whether she had any further correspondence with the dietician. Ms Antoinette confirmed that she had in fact replied to the dietician to confirm that there had been a misunderstanding and that Client B was receiving more than 900 calories. She also confirmed that the same day the dietician had sent a reply email (4 November Diet Emails). 28
[36] At Langley 3 there is one computer used by all staff using the same login details and password. There is an email account/address for Langley 3 and each staff member also has their own email account/address. In the inbox for Langley 3 there are separate folders for each client so that emails can be separately stored and easily retrieved. 29
[37] Ms Keep was unable to find the 4 November Diet Email in the Langley 3 mail box. She asked another support worker employed at Langley 3 who confirmed that she had earlier seen the 4 November Email in the inbox. 30
[38] The events which next occurred are in dispute.
[39] Ms Keep says that around 9am on Wednesday 13 November 2019 she was in the office searching in the deleted items of the Langley 3 mail box for the missing 4 November Emails when Ms Massaga entered the office. Ms Keep says that she asked Ms Massaga whether she had seen any other emails between Ms Antoinette and the Dietician other than the 3 November Diet Emails that she had provided to Ms Harland. Ms Keep says that Ms Massaga denied seeing any other emails. Ms Keep says she then left the room to make a call. At 9:28am Ms Keep received the 3 November Email Chain which was forwarded to her by Ms Massaga. 31
[40] Ms Massaga says that on Wednesday 13 November 2019 Ms Keep approached her while Ms Massaga was in the office and asked her if she could forward to her the emails between Ms Antoinette and the dietician. Ms Massaga says that she invited Ms Keep to forward the emails herself, offered her a chair and left the office to continue her own work.Ms Massaga says that later Ms Keep called her and said she could not locate the emails. Ms Massaga says that she returned to the office to check the emails herself. She says that she sat alongside Ms Keep and searched for the emails but could not find them. She says she told Ms Keep that the emails must have been deleted but (as she had forwarded the emails to her work email account in preparation for making the complaint to Head Office) she would locate emails and forward them to Ms Keep. 32 Ms Massaga says that later that day she located the 3 November Diet Emails and forwarded them to Ms Keep.33
[41] Ms Keep was later instructed how to recover emails which had been deleted from the ‘deleted items’ and discovered that at 9:22am on 13 November 2020, after she left the office, the 4 November Email Chain had been forwarded to Ms Massaga’s personal email address and had been deleted from the ‘deleted items’. She also found that at 9.13am and 9.21am respectively, Ms Massaga had sent a copy of Client B’s food diary and her food planning to Ms Massaga’s own personal email address as well as her work email address. She also observed that at 9.28am Ms Massaga forwarded the 3 November Email Chain that she had already provided to Ms Harland to Ms Keep but not the 4 November Diet Emails that Ms Keep had requested. 34
[42] Ms Massaga admited that she forwarded emails to her private email account. She says that she did so because it appeared that emails relevant to her complaint appeared to be missing and she feared that there had been some attempt to cover up the issues she had complained about which were currently under investigation. 35
[43] Ms Massaga admitted in her witness statement that she deleted emails from the Langley 3 email ‘in box’, ‘sent items’ and ‘deleted items’. She said that she did so because she couldn’t trust any of her colleagues including Ms Keep and to avoid confrontation with Ms Antoinette who also had access to the Langley 3 mail box. 36
[44] Ms Keep was concerned that Ms Massaga had forwarded confidential client documents to her personal email account, had denied she was aware of the existence of emails relevant to her allegations and had deleted those emails. Ms Keep could not understand how the emails might be part of a ‘cover up’ when they in fact revealed that Client B was being given more than 900 calories or if Ms Massaga did not trust her, why she did not forward the emails to Ms Harland who was conducting the investigation. She reported her concerns to Mr Smith and Ms Harland. She also reported that another support worker had reported visible animosity from Ms Massaga towards Ms Antoinette. 37
[45] Having observed both witnesses in the witness box, giving consideration to the consistency of the other evidence they provided in the proceedings and any corroborative evidence I have preferred Ms Keep’s evidence where it conflicts with Ms Massaga.
[46] Later on 13 November 2019 Ms Keep gave a letter to Ms Massaga requesting that Ms Massaga attend a meeting to discuss Ms Keep’s concerns about tension between staff members at Langley 3 which Ms Keep believed was adversely impacting on client care (Staff Conflict Meeting). The letter contained the following warning: 38
“It is important for you to understand that this meeting forms part of our standard performance and conduct process, the outcome of which may include disciplinary action, up to and including termination of your employment. It is a requirement of your employment to participate in this process and provide whole and truthful responses on each matter.”
[47] The letter invited Ms Massaga to bring a support person with her to the meeting. 39
[48] At Ms Massaga’s request the meeting was rescheduled from 18 November 2019 to 21 November 2019. 40
[49] On 14 November 2019 Ms Massaga sent an email to the CEO of Activ notifying her that she had made allegations that clients had been abused and neglected and asserting that she was now being victimised by being directed to attend a staff meeting about staff tensions. 41
[50] Ms Massaga also called the Activ whistleblowers hotline to report her allegations. Ms Kristina Ryan (Ms Ryan), a Senior HR Business Partner called her the same day to discuss her concerns. 42
[51] On 21 November 2019 Ms Massaga attended a meeting with Ms Keep and Mr Smith. Mr Smith explained that while he was aware of the investigation into her allegations, that was not the purpose of the meeting. Rather, the purpose of the meeting was to discuss how the staff in Langley 3 could work more harmoniously together. Ms Massaga told Mr Smith that the issues between the staff arose from the manner in which some staff treated clients. She went on to ventilate a number of concerns about the manner in which Ms Antionette performed her duties. Mr Smith invited Ms Massaga to suggest some solutions to the relationship issues and told her that he would speak to other staff and seek their suggestions as well. 43
[52] On 22 November 2019 Ms Hartland emailed Ms Massaga to report that her investigation corroborated many of the concerns she had reported and that a plan would be developed to address the concerns. 44
[53] On 28 November 2019 Ms Massaga sent an email to Ms Ryan informing her that Ms Keep had thanked her for reporting her concerns about the treatment of clients, that she would ensure that Ms Massaga was not victimised for doing so and was looking forward to continuing to work with Ms Massaga on her return from her upcoming annual leave. 45
[54] On 29 November 2019 Ms Harland and Ms Massaga met to discuss the findings of Ms Harland’s investigation. 46
[55] On 1 December 2019 Ms Massaga emailed Mr Smith seeking information on the outcome of the Staff Conflict Meeting and informing him that Ms Harland had completed her investigation and corroborated Ms Massaga’s allegations. Mr Smith replied the next day reminding Ms Massaga that their meeting had been about team dynamics, not her allegations and that he hoped to be able to provide an update on the progress of his inquires later the same week. 47
[56] On 4 December 2019, Mr Tony Chorley (Mr Chorley) handed Ms Massaga a letter (Allegation Letter). The Allegation Letter informed Ms Massaga that she had been stood down on full pay as a consequence of allegations of misconduct, that she would be required to attend a meeting with Mr Smith on Friday, 6 December 2019 and that she would be required to respond in writing to the allegations by 12 December 2019. 48
[57] The Allegation Letter described the alleged misconduct as follows (Allegations):
a. On 13 November 2019 Ms Massaga falsely told Ms Keep that she had not seen the 4 November Diet Emails.
b. Shortly after being asked about the 4 November Diet Emails, Ms Massaga deleted the emails that Ms Keep had asked about from the Langley 3 Email Account.
c. At about the same time as she deleted the emails, Ms Massaga forwarded some emails with client information to her own personal email address.
d. When Ms Massaga subsequently forwarded the 4 November Diet Email Chain to Ms Keep, Ms Massaga did not include the last two emails in the thread (which were the emails Ms Keep had been looking for and which Ms Massaga deleted).
e. Subsequently Ms Massaga deleted from the deleted folder of the Langley 3 Email Account the 4 November Diet Emails that she initially deleted on 13 November 2019.
f. Ms Massaga had engaged in a targeted bullying campaign against Ms Antoinette including raising petty complaints about her in retribution for Ms Antoinette assisting Activ to conduct an investigation concerning a co-worker.
[58] On 5 December 2019, Ms Massaga sent an email to Mr Smith informing him that she would not be able to attend the meeting on 6 December 2019 as it was insufficient notice for her support person. 49
[59] Later the same day Mr Smith informed Ms Massaga that the meeting had been rescheduled to 12 December 2019. 50
[60] Ms Massaga engaged Mr Heathcote’s services and on 8 December 2019 Mr Heathcote sent an email to Mr Smith requesting further time in which to make a written response. This request was declined by Mr Smith. The following day Mr Heathcote requested that Mr Smith reconsider his decision. Mr Smith declined to reverse his decision advising Mr Heathcote that he believed that Ms Massaga had been given a reasonable amount of time to respond to the Allegations. 51
[61] On 12 December 2019, Ms Massaga provided her response to the Allegations via a letter from Mr Heathcote. The response alleged that the misconduct allegations amounted to bullying and stemmed from a desire on the part of Mr Smith to support Ms Antoinette and punish Ms Massaga for complaining about Ms Antoinette. The response foreshadowed that Mr Heathcote would report the alleged victimisation and bullying by Mr Smith to Activ’s CEO. 52
[62] Ms Massaga did not attend the meeting scheduled for 12 December 2019. 53
[63] On 16 December 2019, Mr Smith sent Ms Massaga a letter (via email) (Show Cause Letter) inviting her the to show cause as to why she should not be dismissed and asking her to attend a meeting on 20 December 2020 (Show Cause Meeting). The Show Cause Letter indicated that some allegations had been substantiated while others were not substantiated. The substantiated allegations were found to be in direct breach of various Activ policies, the Code of Conduct, the National Disability Services Standards and Ms Massaga’s contractual obligations. Ms Massaga did not respond to this letter and did not attend the Show Cause Meeting on 20 December 2020. 54
[64] On 20 December 2020 after Ms Massaga failed to attend the scheduled Show Cause Meeting Mr Smith informed Ms Massaga in writing that her employment had been terminated and that she would be paid five weeks’ pay in lieu of notice. 55 The Letter of Termination identifies the reasons for termination as follows:
“1. You have acknowledged that you knew about the email series your manager was seeking to find. You failed to assist your manager despite the fact that you had access to a copy of these.
2. You have admitted to deleting emails containing confidential customer information. You deleted an email series immediately following your manager’s request for this information and then chose to provide your manager with an incomplete email series only.
3. You have admitted to forwarding emails containing confidential customer information to a private email address.”
[65] Ms Massaga seeks orders for reinstatement, back pay and continuity of service. If reinstatement is found to be inappropriate, she seeks an order for compensation.
Is Ms Massaga protected from unfair dismissal?
[66] An order for reinstatement or compensation may only be issued if Ms Massaga was unfairly dismissed and Ms Massaga was protected from unfair dismissal at the time of her dismissal. Section 382 sets out the circumstances that must exist for Ms Massaga to be protected from unfair dismissal.
[67] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
a. the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
b. one or more of the following apply:
• a modern award covers the person;
• an enterprise agreement applies to the person in relation to the employment;
• the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[68] Ms Massaga commenced employment with Activ, which is a national system employer, on 18 October 2013. There is no dispute, and I am satisfied, Ms Massaga has completed the minimum employment period. Her gross wage per fortnight as at the date of her dismissal was $2,762.54. There is no dispute and I am satisfied that her earnings are below the high income threshold. The Social, Community, Home Care and Disability Services Industry Award 2010 and the Activ Foundation Incorporated – United Voice – Direct Care Staff Enterprise Agreement 2015 applied to her employment. 56 Consequently, I am satisfied that Ms Massaga was protected from unfair dismissal.
Was Ms Massaga’s dismissal unfair?
[69] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:
a. the person has been dismissed;
b. the dismissal was not consistent with the Small Business Fair Dismissal Code;
c. the dismissal was not a case of genuine redundancy; and
d. the dismissal was harsh, unjust or unreasonable.
[70] There was no dispute and I find that Ms Massaga’s employment with Activ terminated at the initiative of Activ.
[71] I am therefore satisfied that Ms Massaga has been dismissed within the meaning of section 385 of the FW Act.
[72] It is not disputed and I find that Activ was not a small business employer within the meaning of section 23 of the FW Act at the relevant time, having in excess of 14 employees.
[73] I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as Activ is not a small business employer within the meaning of the FW Act.
[74] It was not disputed and I find that the dismissal was not a case of genuine redundancy.
Was the Application made within the period required?
[75] Pursuant to section 396 of the FW Act is necessary to determine whether the application was made within the period required in sub section 394(2) before considering the merits of the Application.
[76] Sub section 394(2) of the FW Act requires that the Application be made within 21 days after the dismissal took effect.
[77] It is not disputed and I find that Ms Massaga was dismissed from her employment on 20 December 2019 and made the Application on 7 January 2020. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.
Was the dismissal harsh, unjust or unreasonable?
[78] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
a. 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);
b. whether the person was notified of that reason;
c. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
d. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
e. if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
f. the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
g. 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; and
h. any other matters that the FWC considers relevant.
[79] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 57
[80] I set out my consideration of each below.
Was there a valid reason for the dismissal related to Ms Massaga’s capacity or conduct?
[81] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.” 58 Validity is to be considered within the context of the operational requirements of the employer’s business.59
[82] The measure for determining whether the reason for termination was valid is objective; that is, the reason "must be defensible on an objective analysis of the relevant facts." The employer's subjective belief that the termination was for a valid reason will not suffice. 60
[83] The FWC is not to:
“… stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee's capacity or conduct.” 61
[84] Where a dismissal relates to an employee’s conduct, the FWC must be satisfied that the conduct occurred and justified termination.62 “The question of whether the alleged conduct took place and what it involved is to be determined by the FWC on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 63
[85] Activ says that it dismissed Ms Massaga because:
a. she acknowledged that she knew about the 4 November Diet Emails Ms Keep had been seeking to find and had intentionally failed to assist Ms Keep despite having access to the emails;
b. she admitted to deleting emails containing confidential client information immediately following Ms Keep’s request for the information;
c. she had no grounds to believe that the emails would be permanently lost or modified if she provided them to Ms Keep; and
d. she admitted to deliberately forwarding emails containing confidential customer medical information to her private email address.
[86] Activ says that as a consequence of this conduct it lost the necessary trust and confidence in Ms Massaga to perform the inherent requirements of her role.
[87] Ms Massaga submits that Activ did not have a valid reason for dismissing her because:
a. she did not engage in any conduct that amounted to a breach of any of her employment contract’s essential terms;
b. she did not engage in conduct that could be properly characterised as serious misconduct, because her conduct necessarily lacked any deliberate or wilful character as she was unaware that she was doing anything wrong;
c. a breach of a policy or procedure of which she was unaware could not form the basis of valid reason for her dismissal; and
d. she did not engage in conduct that, in its context, could reasonably cause Activ to lose trust and confidence in her ability to perform her role.
[88] The Employment Contract relevantly provides at clause 8 that: 64
“Serious Misconduct
Activ may terminate your employment without notice if you commit any act of serious misconduct in the discharge of your duties.
Your[sic] will only be paid to the time of summary termination.
Serious misconduct includes, but is not limited to:
• Wilfully disobeying any lawful order or direction by Activ.”
[89] The Employment Contract relevantly provides at clause 9 that: 65
“9. Policies and Procedures
You agree to comply with all relevant Acts, Regulations, Codes of Practice, Management Plans and lawful directions in relation to the workplace policies, procedures and practices
(including but not limited to the Activ code of Conduct and Ethics Policy) of Activ as updated or issued from time to time.”
[90] Ms Massaga denies that Activ made her aware of the existence or content of its polices and procedures, its Code of Conduct, the NDIS Code of Conduct or the Disability Service Standards. Nor she says did Activ provide her with any training in relation to these policies, procedures, codes and standards.
[91] However, the evidence reveals that on 16 October 2013 Ms Massaga acknowledged receipt of Activ’s suite of Information Technology (IT) policies, expressly declaring that she had “read, understood and agree” to be bound by them. 66
[92] The suite of IT policies which Ms Massaga declared she understood and agreed to be bound by included the ICT Electronic Communications Policy. This policy relevantly provides at clause 1.4 that: 67
“The information/data stored on computers, devices and Activ’s network is provided to undertake business-related activities. As such, data should not be amended, deleted, copied or taken home unless this is both specifically related to the work you are undertaking and you have been given permission to do so.”
[93] The suite of IT policies which Ms Massaga declared she understood and agreed to be bound by also included the ICT Confidentiality Policy. This policy relevantly provides at clause 2 that: 68
“2. Data Protection, Sensitive and Company Information
Activ uses a number of different systems to store information for the purpose of conducting business. Depending on your job role you may be granted access to confidential, sensitive and/or private information.
Under no circumstances may you:
• Share Activ data/information externally unless specifically related to your job role and you are authorised to do so.
• Remove/Copy Activ data/information from a device or shared network unless it’s specifically related to your job role and you are authorised to do so.”
[94] The evidence is that each time Ms Massaga logged into Activ’s IT system she was required to manually accept a dialogue box reminding her of Activ’s Electronic Communications Policy, where it could be located and confirming her agreement to be bound by it. 69
[95] Furthermore, the evidence is that the National Disability Standards also set out confidentiality obligations and that these Standards are covered in the Certificate III in Disability which Ms Massaga completed in November 2015. 70
[96] When the allegations of misconduct were put to Ms Massaga, she admitted that she had deleted some emails relating to her complaint about client care and admitted forwarding emails with a client’s medical information to her private email address. Given that the diet plan and eating plan were sent to Activ by an external sender there was no need to breach confidentiality to ‘preserve’ the information by sending the information to her own account when it could have been sourced from the external sender if someone other than Ms Massaga was responsible for its deletion.
[97] At the Hearing Ms Massaga gave evidence that she conducted a key word search and located the 4 November Diet emails before forwarding them to her personal email address. However, she denies she was aware that she had them, that she had read them or that she was aware of the significance of their contents.
[98] I note that she did not allege that she was unaware of the 4 November Diet Emails in her witness statement or in her written reply to the Allegations.
[99] It is highly implausible that Ms Massaga was not aware of the 4 November Diet Emails or the significance of its contents. Ms Keep specifically told Ms Massaga that she was looking for correspondence between Ms Antoinette and the Dietician immediately before the emails were deleted and forwarded to Ms Massaga’s personal email account.
[100] Given that Ms Massaga had provided copies of the 3 November Diet Emails to Ms Harland to support her allegations it is implausible that having conducted a key word search which revealed additional correspondence she would not recall finding such correspondence or that she would not have read it. This is particularly so given the evidence is that there were only two additional emails and that these emails were both very short.
[101] At the Hearing Ms Massaga suggested that some other unidentified person may have deleted the emails. She suggested this for the first time in her oral testimony. It was not a matter raised by her in her witness statement or in her written response to the allegations. In fact, in her witness statement and her written response to the allegations she expressly conceded that she deleted emails. Given the evidence that the 4 November Diet Emails were forwarded to her work and personal email accounts at around the time that the 4 November Diet Emails were deleted from the ‘deleted items’ it seems probable that it was Ms Massaga who both deleted the 4 November Diet Emails and forwarded them.
[102] By intentionally deleting emails that Ms Massaga knew her manager was looking for and only sending her manager some of the emails in the chain, she engaged in deliberate conduct which withheld information from the manager contrary to a lawful instruction to provide the information.
[103] In Deng v Westpac Banking Corporation[2018] FWC 7334, Commissioner Riordan found that the applicant's breach of the respondent's policies (including the Technology Code of Use which was breached when the applicant sent customer information to his personal email address) was a valid reason for termination of the applicant's employment.
[104] In Douglas v Bynoe Community Advancement Cooperative Society Ltd[2017] FWC 4374, Commissioner Simpson said of the applicant that:
“… as a matter of common sense, sending confidential information to her private email account was inconsistent with the requirement to treat sensitive material confidentially. Sending confidential information to her private account lacked common sense and undermined Bynoe's ability to trust her with confidential records."
[105] The fact the emails were able to be recovered does not change the character of Ms Massaga’s conduct.
[106] In Obuchowski v RNTT Pty Ltd t/a Jobs Statewide Employment Solutions [2018] FWC 3040, SDP Hamberger found that the applicant’s knowing breach of their employer’s confidentiality policies (the applicant's conduct included deleting emails) was a valid reason for dismissal. SDP Hamberger stated that:
“The fact that the documents and emails at issue in this case were ultimately recovered does not negate the severity of the applicant's actions, nor make their deletion any less of a breach of policy.”
[107] While Ms Massaga says she was afraid of a cover up, she has not established any reasonable basis for this concern. The evidence is that Activ has a well-established complaints investigation process which Ms Massaga was encouraged to access and supported to utilise. Mr Smith and Ms Keep’s evidence is that they would never victimise a staff member for raising a concern about customer care. But for Ms Massaga’s assertions, there is no evidence before me to suggest otherwise. In fact, the evidence is that disciplinary action has been taken in relation to employees who fail to report concerns about client welfare. The evidence also reveals that Activ accepted that aspects of Ms Massaga’s concerns required action and implemented work practice changes accordingly.
[108] If Ms Massaga had genuine reasons for not providing the emails to Ms Keep she could have provided them to Ms Harland, with whom she had already had contact and knew was investigating her complaint, to the CEO to whom she forwarded other information about her allegations, or to the whistleblowers complaint line which she was also in contact with.
[109] Tellingly the emails that she did not provide to Ms Harland, Ms Keep or any other person in a position of responsibility in Activ were the emails which reflected favourably upon Ms Antoinette.
[110] The evidence does not support Ms Massaga’s assertion that she was victimised or that Activ acted capriciously, spitefully or in a prejudiced manner because she raised allegations about client welfare. In fact, the evidence suggests that it acted promptly and diligently to investigate her concerns and acted upon them. The investigation into the interactions between staff in Langley 3 was sensibly kept separate from the investigation into client welfare and led by different personnel. The reasons for her dismissal arise from her conduct in relation to evidence critical to the investigation into client welfare not because she raised concerns about client welfare.
[111] Rather than acting capriciously, spitefully or in a prejudiced manner the evidence suggests that imposing disciplinary consequences is consistent with the treatment of other employees who have been found guilty of confidentiality breaches. 71
[112] Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to Ms Massaga’s conduct.
Was Ms Massaga notified of the valid reason?
[113] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 72 and in explicit73 and plain and clear terms.74
[114] On 4 December 2019, a letter was given to Ms Massaga setting out the allegations to which she was invited to respond. On 16 December 2019, she was issued with a second letter which identified the allegations against her which had been substantiated. Ms Massaga had the opportunity to respond to this letter but declined to do so. 75
[115] Her employment was terminated on 20 December 2019. The reasons for the termination as set out in the Letter of Termination were consistent with the letters issued on 4 December and 16 December 2019.
[116] It is not disputed 76 and I find that Ms Massaga was notified of the reasons for her dismissal prior to the decision to dismiss being made in explicit, plain and clear terms.
Was Ms Massaga given an opportunity to respond to any valid reason related to her capacity or conduct?
[117] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 77
[118] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 78 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.79
[119] On 4 December 2019, the Allegation Letter was given to Ms Massaga. The Allegation Letter informed Ms Massaga that she had been stood down on full pay as a consequence of allegations of misconduct and she was invited to provide a written response. The letter provided details of the allegations she was required to answer.
[120] Ms Massaga was stood down on pay providing her with the opportunity to calmly and methodically respond to the allegations. Ms Massaga obtained legal advice and assistance to prepare her written response.
[121] The Allegation Letter contained an invitation to a meeting on 6 December 2019 to orally respond to the Allegations. The meeting was rescheduled at her request to 12 December 2019. Ms Massaga chose not to attend this meeting. Instead Mr Heathcote requested on her behalf, and was granted, the opportunity to respond in writing.
[122] On 8 December 2019 Mr Heathcote sent an email to Mr Smith requesting further time in which to make a written response. This request was declined by Mr Smith. The following day Mr Heathcote requested that Mr Smith reconsider his decision. Mr Smith declined to reverse his decision advising Mr Heathcote that he believed that Ms Massaga had been given a reasonable amount of time to respond to the Allegations. 80
[123] On 12 December 2019, Ms Massaga provided her response to the allegations via a letter from APX Law.
[124] Mr Heathcote submitted that Ms Massaga had insufficient time to adequately prepare her response and inadequate access to records. He did not identify what records she was denied access to nor is there any evidence before me that she sought access to any particular records prior to submitting her response. I note that the Allegation Letter invites her to contact Mr Smith in relation to any further clarification she required in order to respond to the Allegations. It is unclear even after the Hearing what additional information Ms Massaga might have included in her response if she had additional time which might have changed the outcome. Given the Allegations were limited in number, clearly articulated and did not require complex or detailed responses I am satisfied that seven days was an adequate time for her to provide a proper response to the allegations given that at the time Ms Massaga was stood down on full pay.
[125] After receiving Ms Massaga’s response, Mr Smith took time to properly consider that response. Mr Smith decided that only some of the allegations had been substantiated. He then issued a further letter to Ms Massaga on 16 December 2019 asking her to show cause why her employment should not be terminated before Activ finalised its decision. The Show Cause Letter explained that Activ had lost trust and confidence in her in light of the substantiated allegations.
[126] In the Show Cause Letter she was again provided with an opportunity to respond orally or in writing to the substantiated allegations and to Activ’s assertion that it had reasonably lost trust and confidence in her. Ms Massaga chose to not to respond either in writing or orally. Only after it was clear that Ms Massaga did not intend to respond to the Show Cause Letter did Activ finally determine what the appropriate disciplinary outcome should be.
[127] In all the circumstances, I find that Ms Massaga was given an opportunity to respond to the reason for her dismissal prior to the decision to dismiss being made.
Did Activ unreasonably refuse to allow Ms Massaga to have a support person present to assist at discussions relating to the dismissal?
[128] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[129] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”81
[130] There is no dispute 82 and I find that Activ did not unreasonably refuse to allow Ms Massaga to have a support person present at discussions relating to her dismissal.
Was Ms Massaga warned about unsatisfactory performance before the dismissal?
[131] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of Activ’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[132] Activ is a large organisation with approximately 2,400 employees. Mr Smith had the assistance of Activ’s human resource team in the management of the process of investigating the allegations made against Ms Massaga. The process adopted by Mr Smith is consistent with what might be expected of an employer of the size and resources of Activ.
To what degree would the absence of dedicated human resource management specialists or expertise in Activ’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[133] Activ did not lack dedicated human resource management specialists and expertise and consistent with this the process adopted by Mr Smith afforded Ms Massaga procedural fairness.
Are there any other matters which are relevant?
[134] Section 387(h) requires the FWC to take into account any other matters that the FWC considers relevant.
[135] Ms Massaga submitted that the following other matters are relevant to the FWC’s consideration of whether her dismissal was harsh, unjust or unreasonable:
a. her significant and unblemished service;
b. the impact of the dismissal on her;
c. the conduct which led to her dismissal was taken by her in an effort to protect vulnerable clients of Activ; and
d. the lack of proportionality between the conduct which she engaged in and the penalty of termination.
[136] While acknowledging that the misconduct related to information relevant to Ms Massaga’s concerns about client welfare, Activ submit that Ms Massaga’s misconduct was not a necessary or appropriate way to address those concerns. Activ further submit that the conduct of Ms Massaga constituted a breach of trust so significant that notwithstanding her prior service, Activ has permanently lost its trust and confidence in Ms Massaga.
[137] Activ are charged with the care of some of the most vulnerable people in our community, many of whom are unable to readily communicate concerns about their treatment. It is therefore critical that Activ ensures that the staff that it entrusts the care of these clients to will act with integrity and propriety at all times. This is particularly so in relation to staff like Ms Massaga who are left alone overnight, charged with the sole care of vulnerable clients. That a staff member might hide or seek to destroy evidence relevant to the care of clients is a matter Activ quite rightfully should be extremely concerned about.
[138] Quite properly Activ has in place systems, process and policies to protect the personal information of the clients that it cares for. It has both statutory and moral obligations to do so. The forwarding of client information to Ms Massaga’s personal email account breaches its obligations to secure and protect such information.
[139] While Ms Massaga’s misconduct occurred in the course of her making a complaint about client care the fact of the complaint does not disentitle Activ from taking appropriate and consistent disciplinary action in response to that misconduct.
[140] Contrary to the submission at Hearing that Activ had prejudged the outcome of the investigation the evidence is in fact to the contrary. Her concerns about client welfare were fully investigated and actioned before the disciplinary process commenced. Ms Massaga was afforded procedural fairness through out the process. The allegations were particularised and provided to her in writing. She was suspended on full pay so that she had the time and financial resources to prepare a detailed response. There is no evidence that she sought and was denied access to any information she required to properly respond to the allegations. She was given the opportunity to respond both in writing and orally. Notwithstanding that English is not Ms Massaga’s first language the evidence in these proceedings and her extensive tertiary qualifications suggest good English proficiency. There is no evidence that Ms Keep held any ill will or bias against Ms Massaga, to the contrary she in fact commended Ms Massaga’s work with clients of Activ. There is no evidence that Mr Smith reached any conclusions before he had provided Ms Massaga with a proper opportunity to understand the case against her and a fulsome opportunity to respond to that case and the consequences of the allegations being substantiated. It is not unreasonable given the cost to the organisation of having Ms Massaga suspended on full pay that Mr Smith did not agree to further extensions of time for Ms Massaga to provide a response. To the extent that she felt that she did not have sufficient time to prepare her response she had the opportunity to provide further information at the show cause stage. She chose to provide neither a written nor an oral response to the Show Cause Letter.
Conclusion
[141] Having considered each of the matters specified in section 387 of the FW Act and giving each due weight, I am satisfied that the dismissal of Ms Massaga was not harsh, unjust or unreasonable.
[142] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. The Applicant’s application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr S Heathcote for the Applicant
Ms R Airey for the Respondent
Hearing details:
2020,
Perth
6 August 2020
Final written submissions:
14 August 2020 Applicant
21 August 2020 Respondent
Printed by authority of the Commonwealth Government Printer
<PR721544>
1 Warrell v the Commission [2013] FCA 291
2 Digital Court Book at page 122.
3 Ibid at pages 122-123.
4 Ibid at page 147.
5 Ibid at page 135.
6 Ibid at pages 235-282.
7 Digital Court Book at pages 235-306.
8 Ibid at pages 283-306.
9 Ibid at pages122-123.
10 Ibid at pages 283-306.
11 Ibid.
12 Ibid at page 147.
13 Ibid at pages 235-282.
14 Ibid at pages 283-306.
15 Ibid at pages 235-282.
16 Digital Court Book pages 147-234.
17 Ibid.
18 Ibid.
19 Ibid.
20 Ibid.
21 Ibid.
22 Digital Court Book pages 147-234.
23 Ibid at pages 283-306.
24 Ibid at pages 147-234.
25 Ibid at pages 283-306.
26 Ibid at pages 147-234.
27 Ibid.
28 Digital Court Book pages 283-306
29 Ibid.
30 Ibid.
31 Ibid.
32 Ibid pages 147-234.
33 Ibid.
34 Digital Court Book pages 283-306.
35 Ibid pages 147-234.
36 Ibid.
37 Ibid pages 283-306.
38 Ibid pages 147-234.
39 Ibid.
40 Ibid.
41 Digital Court Book pages 147-234.
42 Ibid.
43 Ibid.
44 Ibid.
45 Ibid.
46 Ibid.
47 Ibid.
48 Ibid pages 122-123.
49 Digital Court Book pages pages 122-123
50 Ibid.
51 Ibid.
52 Ibid.
53 Ibid.
54 Digital Court Book pages 122-123.
55 Ibid.
56 Digital Court Book page 132.
57 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
58 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
59 Ibid.
60 Rode v Burwood Mitsubishi (unreported, AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999) Print R4471, [19]).
61 Walton v Mermaid Dry Cleaners Pty Ltd (1999) 142 ALR 681, 685).
62 Edwards v Justice Giudice [1999] FCA 1836, [7].
63 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
64 Digital Court Book at page 270.
65 Ibid.
66 Digital Court Book pages 273 and 243.
67 Ibid at page 278.
68 Ibid page 275.
69 Ibid pages 282 and 243.
70 Digital Court Book page 243.
71 Digital Court Book at page 239.
72 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
73 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
74 Ibid.
75 Digital Court Book at pages 122-123.
76 Ibid at page 133.
77 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
78 RMIT v Asher (2010) 194 IR 1, 14-15.
79 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
80 Digital Court Book pages 122-123.
81 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
82 Digital Court Book page 133.
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