Clare Wentworth v Twin Creeks Golf & Country Club Ltd
[2024] FWC 3459
•12 DECEMBER 2024
| [2024] FWC 3459 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Clare Wentworth
v
Twin Creeks Golf & Country Club Ltd
(U2024/8687)
| COMMISSIONER MCKINNON | SYDNEY, 12 DECEMBER 2024 |
Application for an unfair dismissal remedy – whether dismissal harsh, unjust or unreasonable
Ms Clare Wentworth was employed by Twin Creeks Golf and Country Club Ltd (Twin Creeks) in Luddenham, New South Wales. From April 2021, she worked as a casual and then as a full time employee from May 2022 until she resigned with effect from 19 May 2023. On 7 July 2023, Ms Wentworth was re-employed by Twin Creeks as a Trainee Food and Beverage Supervisor. She was promoted to the role of Food and Beverage Supervisor from 2 November 2023 working 75 hours per fortnight. Her day-to-day duties included ordering food and beverages, rostering, approving staff time sheets, dealing with employee leave enquiries, editing the back-of-house till system and managing tips. Ms Wentworth was dismissed on 4 July 2024.
On 25 July 2024, Ms Wentworth applied in time for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). She is protected from unfair dismissal because the minimum employment period of at least 6 months has been completed; the employment was covered by a modern award; and her annual rate of earnings was below the high-income threshold.
The dismissal was not a case of genuine redundancy. As Twin Creeks is not a small business employer, the Small Business Fair Dismissal Code did not apply.
The question is whether I am satisfied that the dismissal was harsh, unjust or unreasonable and if so, what is the appropriate remedy. For the reasons below, Ms Wentworth has been unfairly dismissed and compensation is the appropriate remedy.
The relevant facts
Ms Wentworth’s promotion to the role of Food and Beverage Supervisor coincided with the redundancy of two of her managers (the Operations Manager and the Food and Beverage Manager/Events Coordinator respectively). This meant she took on additional duties including rostering and approving staff timesheets. Her third manager, the Financial Controller, was subsequently replaced with Mr Oliver Tsui, Vice general manager and Financial Controller.
It seems the new role was quite a stressful one. Ms Wentworth was doing her best with limited resources and training but was becoming increasingly frustrated with management. On 11 January 2024, Ms Wentworth felt unwell and left work early after telling the Proshop manager and a colleague in the membership team (but not her manager, Mr Tsui, who she thought was out playing golf). Mr Tsui had actually gone to pick up supplies and returned just as Ms Wentworth was leaving although she did not see him. Mr Tsui was not happy that Ms Wentworth had left without letting him know.
After messaging with a colleague about what had happened that day, including that she felt work was not good for her wellbeing, Ms Wentworth attended the doctor on 12 January 2024 and obtained a medical certificate for her absence. She subsequently received a written warning for leaving work early without notifying Mr Tsui. Mr Tsui’s email warning also reminded Ms Wentworth that there had been no conversation about her passing the probationary period and that it would be extended to 31 March 2024. Ms Wentworth disputed the warning in writing. Her unchallenged evidence is that Mr Malcolm Chen, the newly appointed Operations Manager, later acknowledged the warning was unreasonable in conversation with Ms Wentworth in February 2024.
As noted at the outset, one of Ms Wentworth’s duties from 2 November 2023 was rostering. On 27 May 2024, she was asked to prepare but not publish the roster as Mr Chen and Mr James Ding, Director, wanted to make changes. Mr Chen advised Ms Wentworth that Mr Ding wanted to publish the roster going forward.
On 10 June 2024, Ms Wentworth prepared the roster ready for Mr Ding to publish. Mr Ding made changes to the roster prepared by Ms Wentworth, removing a beverage cart and rostering an extra person on. Ms Wentworth did not agree with this change and “changed it back”. Mr Chen queried the change and Ms Wentworth acknowledged what she had done. Mr Chen responded:
“We can’t be changing the shift without him knowing and he doesn’t like it that you have the administrative access to this. So I suggest you don’t do it without informing him or me. This now looks bad.”
After a series of messages between them about her reasons for changing the roster, and Mr Chen’s insistence that no changes be made without first seeking approval, the conversation ended in this way in words to the effect:
MS WENTWORTH: “I really just don’t understand his mindset with this because I was told to, hours have been shorten [sic] on a public holiday and I’ve always done the roster, is it just because I didn’t tell him?”
MR CHEN:“It’s because you didn’t inform me or him and it’s because you override his access.”
“That’s the issue here clare”
MS WENTWORTH: “okay well I wasn’t aware it would be an issue now I know”
On 11 June 2024, Ms Wentworth sent a message to Mr Chen apologising for changing the roster the day before. She expressed upset at the suggestion that she was trying to “override James”, stated she was just trying to help and suggested that she continue to do the roster as Mr Ding had better things to do.
On 20 June 2024, Ms Wentworth did not attend a staff meeting that had been notified to staff one week earlier on the staff WhatsApp chat. Ms Wentworth did not tell Mr Chen she would be unable to attend in advance. When Mr Chen sent her a message to ask if she was coming to the meeting, Ms Wentworth advised that she had been dealing with a painful medical condition for the past four days and was planning to see the doctor later that day. Mr Chen queried why he not been told of her absence until he contacted Ms Wentworth, who in turn apologised, said it had slipped her mind the night before as she was in pain, and offered to come to work on her way to the doctors if needed. Mr Chen responded by saying “no need come in”.
Later on 20 June 2024, Ms Wentworth was given a warning by email for “mistakes made” in overriding the published King’s Birthday weekend roster (on 10 June 2024) without first seeking approval. Ms Wentworth did not feel the warning was fair. She wrote to Mr Chen explaining that she had never been told that she could not make changes as she had been doing the roster for over a year. She also confirmed her agreement to communicate any necessary changes to the roster moving forward as she was now aware of his requests.
On 21 June 2024, Ms Wentworth sent a message to Mr Chen asking for permission to change the roster Mr Ding had published to reinstate the shift of her sister, Ms Grace Wentworth. Mr Chen did not agree to the request. Ms Wentworth responded with her disappointment about a lack of fairness in rostering including for her sister being given no shifts when another employee was given 20 hours. Mr Chen responded by saying “I think we should move on from this roster thing. Or you can take it up with James.”
There is a dispute about whether Ms Grace Wentworth was ultimately rostered on for work on 23 June 2024. Ms Wentworth says that she was, and Twin Creeks denies it. The messages indicate that Ms Grace Wentworth had been rostered on by Ms Wentworth but removed from the published roster by Mr Ding. There is no dispute that she did in fact work on the Sunday, and it seems likely this was because of changes subsequently made to the roster by Ms Wentworth.
On 28 June 2024, Ms Wentworth wrote to Mr Chen to say the roster had been edited for Friday and she had tried to make it fairer for casuals. The message was received while Mr Chen was with Mr Ding. Mr Ding was not happy that Ms Wentworth could still change the roster and that she had made changes without his approval. Ms Wentworth was not happy when Mr Ding started reversing some of the changes she had made, which she was able to observe remotely. Mr Chen advised Ms Wentworth that they would “need a conversation”.
On 30 June 2024, Ms Wentworth called Grace Wentworth into work for 3 hours from 5.00pm to close without asking Mr Chen for approval. Ms Wentworth says she did this because she did not feel safe working alone and because working alone meant an additional hour of work that she was hoping to avoid (as had occurred the previous Sunday). Messages between Ms Wentworth and Mr Chen reveal her reason for not first seeking his approval at the time as assuming he would say “no”.
Ms Wentworth submits that there had been a previous practice of rostering two employees on close for safety reasons and this was changed on 13 June 2024 to save costs. There is no evidence to contradict this submission and I accept it. But I am not persuaded that this was the primary reason Ms Wentworth called her sister in to work on 30 June 2024. The evidence points instead to Ms Wentworth wanting to be able to finish work on time (at 8.00pm); her inability to do this without another staff member minding the bar; and her interest in making more hours available to her sister. Although I accept that Ms Wentworth had safety concerns about staff working alone, she had previously offered to Mr Chen (on 11 June 2024) to “stay on nights on my own as I feel okay with it and have done it in the past”. Whether this was a safe workplace practice is a separate question.
On 1 July 2024, Ms Wentworth submits that Mr Chen yelled at her for rostering her sister without approval. Certainly, the development was not welcomed by Mr Chen, who asked Ms Wentworth why her sister had worked without being rostered on and why he was not informed. He wrote:
“How many time do I have to repeat myself? I or James did not approve those hours to her and we weren’t informed. Which part of this you don’t seem to understand?”
“Who asked you to make a decision to ask her to work yesterday? Clearly you think you have to report into [sic] no one and disrespectful to the hierarchy or the company that you are working at”
“Again, I will see you Thursday at the club and we will talk about it.”
On 4 July 2024, Ms Wentworth attended the meeting requested by Mr Chen with a support person. The support person was denied access to the meeting but allowed to sit outside. The meeting began and Mr Chen gave Ms Wentworth a letter of termination. He told her that the reason for termination was rostering her sister without informing him and overriding approved shifts. Ms Wentworth demanded that her support person join the meeting and allowed her in over the objection of Mr Chen, who tried to prevent her from entering. The meeting was recorded at Ms Wentworth’s request with Mr Chen’s agreement.
Following termination of her employment, Ms Wentworth became very upset and sought medical treatment. She started looking for another job on or about 23 July 2024. She commenced in a new role on 3 October 2024 with another Club in the area, working approximately 4-5 shifts a week.
Was the dismissal harsh, unjust or unreasonable?
Was there a valid reason for the dismissal related to capacity or conduct, and was it notified to Ms Wentworth?
There was a valid reason for the dismissal of Ms Wentworth in connection with her decision to continue making changes to the roster after 10 June 2024 without seeking approval from Mr Chen. Ms Wentworth was given a clear, reasonable and lawful instruction on 10 June 2024 not to change the roster without first letting Mr Chen or Mr Ding know. On 20 June 2024, Ms Wentworth acknowledged this direction and confirmed that she would communicate any necessary changes to Mr Chen in future. Despite this commitment, Ms Wentworth edited the roster on 28 June 2024 and called her sister into work on 30 June 2024 without first seeking approval. It is likely that she did the same on 23 June 2024, although this is not firmly established. I accept Ms Wentworth’s genuine belief that she was acting in the best interests of the business. That may well be so, but the decision to make changes to the published roster was no longer hers to make. Her conduct in making unauthorised rostering changes after 10 June 2024 was in deliberate defiance of the instruction she had been given and reminded about on multiple occasions.
Ms Wentworth had been told repeatedly by Mr Chen that Twin Creeks was not happy with her making changes to the roster without first seeking approval. In this sense, I am satisfied that Ms Wentworth was notified of the reason for dismissal in advance. However, she was never told that this conduct was considered so serious that it put her continuing employment at risk, and until 10 June 2024, this had been a regular part of her duties.
Was there an opportunity to respond to any capacity or conduct related reason?
There was some opportunity to respond to the concerns held by Twin Creeks about Ms Wentworth making unauthorised changes to the roster in dialogue between her and Mr Chen in the period after 10 June 2024. However, as noted above, Ms Wentworth was never told that her continuing employment was at risk. I agree with Ms Wentworth that the decision to dismiss her had already been made by the time it was communicated on 4 July 2024. How could it not have been, when the meeting on that day began with handing Ms Wentworth a pre-prepared letter of termination? During the meeting, Mr Chen reiterated that the decision was “final”.
It seems likely that the decision to dismiss was made four days earlier on 30 June 2024. It was at this point that Mr Chen asked Ms Wentworth for her login and passwords for a range of business accounts. The following day, Ms Wentworth was asked to train another employee in cleaning the beer lines as she was the only one who really knew how to do it. On balance, I am not satisfied that Ms Wentworth was given a proper opportunity to respond to the concerns Twin Creeks held about her conduct before the decision to dismiss her was made.
Was there any unreasonable refusal to allow a support person to be present to assist at any discussions relating to dismissal?
It was unreasonable for Mr Chen to refuse Ms Wentworth’s request to have a support person present in the discussion about her dismissal at the start of the meeting on 4 July 2024. This unreasonable approach continued when Ms Wentworth subsequently insisted that her support person join the meeting and Mr Chen tried to prevent the support person from entering the room.
Was Ms Wentworth warned about relevant unsatisfactory performance?
This is not a relevant consideration. Ms Wentworth was dismissed for conduct reasons rather than because of her performance. By all accounts, Ms Wentworth was otherwise a diligent and capable employee with much to learn but also much to give.
Degree to which the size of the employer’s business and any absence of dedicated human resources management specialists or expertise in the business would be likely to impact on procedures followed in effecting the dismissal
Although Twin Creeks is not a small business employer for the purposes of the Act, it does not give the impression of being a sophisticated business from the perspective of organisational administration. Although there is no evidence to this effect, the size of the business, and the absence of dedicated human resources expertise, is likely to have contributed to significant deficiencies in the process leading to dismissal.
Other matters
Ms Wentworth’s length of service was neither very short nor very long. She was paid 4 weeks’ wages in lieu of notice of termination.
In addition to unfair dismissal, Ms Wentworth alleges that she has been underpaid by Twin Creeks. Twin Creeks denies the allegations. Underpayment claims are not within the scope of these proceedings and can separately be raised with the Fair Work Ombudsman.
Ms Wentworth was unfairly dismissed
On balance, I am satisfied that the dismissal was unreasonable. Although there was a valid reason for the dismissal that was notified to Ms Wentworth in advance, the process leading to dismissal did not afford Ms Wentworth procedural fairness and involved the refusal of a support person to assist in discussions about the dismissal. In the context of her having been responsible for rostering for many months before 10 June 2024, Ms Wentworth could and should have been told that her job was at risk if she continued to make changes to the roster without approval before any decision to terminate her employment was made. This would have allowed her a proper opportunity to reflect on the seriousness of the matter from the perspective of Twin Creeks before it was too late.
It follows that Ms Wentworth has been unfairly dismissed.
Remedy
Reinstatement is not sought by either party and it is clear that the events of June and July 2024 have led to a breakdown in the relationship that is unlikely to be restored. Accordingly, I am not satisfied that reinstatement would be an appropriate remedy in this case.
I am satisfied that compensation is the appropriate remedy.
Section 392(2) of the Act deals with how compensation is to be assessed in connection with an unfair dismissal. The established methodology is elaborated on in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc (Bowden).[1]
Viability (s.392(2)(a)): There is no evidence to suggest that an order requiring Twin Creeks to pay Ms Wentworth compensation would impact on the viability of its enterprise. It is a neutral consideration.
Remuneration Ms Wentworth would have received, or would have been likely to receive, if she had not been dismissed (s.392(2)(c)): I am not satisfied that Ms Wentworth would have remained in employment with Twin Creeks for much longer had she not been dismissed. She was unhappy with how her sister was being treated and did not feel valued or appreciated, particularly after restrictions were placed on her rostering ability. As a result, Ms Wentworth was making decisions she knew, or ought to have known, would put her in conflict with the business. She was ‘rolling the dice’. On balance, I consider it likely that Ms Wentworth would have remained in employment for a further 6 weeks.
Ms Wentworth’s weekly wage as at 4 July 2024 was $996.33 gross per week for 37.5 hours. On average, however, Ms Wentworth worked 43.76 hours in the 24-week period prior to her dismissal. I find she worked an average of 6.26 hours of overtime per week attracting a 150% penalty (or $249.48 per week), and that her average weekly earnings were $1,245.81. In total, Ms Wentworth’s gross earnings in the anticipated period of future employment are assessed as $7,474.86.
Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f)): Ms Wentworth was paid 4 week’s wages in lieu of notice of termination. She began looking for work about 3 weeks after the dismissal and ultimately was successful in early October 2024, after the anticipated future period of employment had passed.
Accordingly, I find that the calculation of compensation should be adjusted as follows:
(a) $7,474.86 (anticipated gross earnings in 6 week period after dismissal)
(b) Less $3,985.32 (wages in lieu of notice of termination)
(c) Subtotal = $3,489.54 gross.
This calculation is intended to put Ms Wentworth in the position she would have been but for the termination of employment.
Length of service (s.392(2)(b)): Ms Wentworth’s length of service is neither relatively long nor relatively short. It does not warrant an adjustment in the amount of compensation in this case.
Mitigation efforts (s.392(2)(d)): Ms Wentworth provided evidence of job applications in the period after 23 July 2024. Perhaps she could have been a little more proactive in this regard, but I accept that she was quite distressed in the period after dismissal and did what she could when she was ready. No adjustment in the compensation amount is made on this account.
Other matters (s.392(2)(g)): Given the short period of anticipated future employment, there will be no discount for contingencies.
Misconduct (s.392(3)): Ms Wentworth’s misconduct was a significant contributing factor to the dismissal. It gave Twin Creeks a valid reason for dismissal. On this basis, I must reduce the amount of compensation under section 392 of the Act. I am satisfied that a further reduction of 15% (or $523.43) is appropriate. This leaves a compensation amount of $2,966.11.
Shock, Distress (s.392(4)): The amount of compensation does not include a component for shock, humiliation or distress.
Compensation cap (s.392(5)&(6)): The amount of $2,966.11 gross is less than the compensation cap of 26 week’s pay and no further adjustment of the amount is necessary.
Instalments (s.393): No application was made by Twin Creeks to pay any compensation awarded by instalments and no order will be made to that effect.
Conclusion on remedy
A compensation amount of $2,966.11 is neither clearly excessive nor clearly inadequate in the circumstances of the case.
Order [PR782347] will issue separately giving effect to this decision.
COMMISSIONER
Appearances:
C Wentworth on her own behalf.
M Chen for the respondent.
Hearing details:
2024.
Sydney:
November 12.
[1] [2013] FWCFB 431.
Printed by authority of the Commonwealth Government Printer
<PR782346>
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