Danute Kristina Grigonis v Adelaide Coffee Company Pty Ltd

[2011] FWA 1586

[2011] FWA 1586

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Danute Kristina Grigonis
v
Adelaide Coffee Company Pty Ltd
(U2010/14008)

COMMISSIONER HAMPTON ADELAIDE, 29 MARCH 2011

Unfair dismissal - small business - whether permission to be represented should be given - whether dismissal complied with small business fair dismissal code - whether applicant relevantly warned - whether dismissal unfair within the meaning of the Act.

BACKGROUND AND INTRODUCTION

[1] This matter concerns the dismissal of Ms Danute Grigonis (the applicant) by the Adelaide Coffee Company Pty Ltd (the respondent). Much of the context for this matter is agreed however there are some key factual disputes and a related significant difference of view as to what constitutes a warning for present purposes. Ultimately the resolution of that dispute is, amongst others, central to the determination of this matter.

[2] The applicant has applied for a remedy in relation to an alleged unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). It is agreed that the respondent is a small business for the purposes of the unfair dismissal jurisdiction established by the Act. 1 It is also agreed that the applicant has sufficient service to be protected2, has filed within time3, was dismissed by the respondent4 and that the dismissal was not the result of a genuine redundancy.5

[3] As a result, s.396 of the Act requires in this case that I initially determine whether the applicant’s dismissal was consistent with the Small Business Fair Dismissal Code as established in accordance with s.388 of the Act (the Small Business Code). If I were to find to the contrary, I would then need to consider whether the dismissal was unfair having regard to the considerations established by s.387 of the Act.

[4] Section 385 of the Act means in effect that should I find that the dismissal was consistent with the Small Business Code, it cannot be considered to be unfair for the purposes of this jurisdiction.

PERMISSION TO BE REPRESENTED

[5] Both parties were ultimately represented by legal counsel for the hearing in this matter. The respondent initially sought permission, which was opposed by the applicant. Following a directions conference conducted in the immediate lead up to the hearing in this matter, I granted permission for the respondent to be represented. In so doing I indicated that I would subsequently provide my reasons as part of any decision issued in this matter.

[6] Section 596 of the Act provides as follows:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.

(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note: Circumstances in which FWA might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non-English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

(3) FWA’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.”

[7] Mr See of counsel, who appeared for the respondent, contended that it was in effect seeking confirmation of the implied permission that had already been granted by Fair Work Australia. That is, the respondent had already filed material through its solicitors and had been represented throughout the processes administered by the Tribunal to that point. Further, the fact that the applicant, who continued to be represented by a solicitor, at least for some purposes, had apparently chosen not to be represented at the substantive hearing should not mean that the respondent had to do likewise.

[8] In terms of the considerations established by s.596 of the Act, the respondent contended that consistency of representation, the fact that the applicant had been represented to this point by a solicitor, the existence of factual disputes and an important jurisdictional point, and the nature of the respondent all pointed to the appropriateness of permission being granted.

[9] Mr Bourne of counsel, who appeared for the applicant, contended that permission was required for the respondent to be represented at the hearing and that such should not be given. In support of that view, it was argued that the applicant would not be represented at the hearing and that the matters to be resolved were relatively straightforward. Further, it was contended that it would be unfair to the applicant who would, if permission were granted to the respondent, also need to be represented and this would be problematic given the expense of such representation in the context of the potential remedies available to the applicant under the Act.

[10] I note that the original application in this matter was filed on behalf of the applicant by Mr Bourne and since that time, all materials filed with Fair Work Australia on behalf of both parties have been submitted through solicitors. This has included the employer’s formal response and the outlines and witness statements filed by both parties in preparation for the hearing. As alluded to earlier, although Mr Bourne has continued to represent the applicant for all other purposes, he advised the respondent and Fair Work Australia that the applicant would not be seeking permission for representation for the actual hearing of the matter.

[11] In approaching this matter, I take the view that permission to be represented for the purposes of the hearing was still required notwithstanding the history of the matter. It is likely that (except in the case of filing materials relating to modern awards and minimum wage matters and where the parties meet the requirements of s.596(4)) s.596 of the Act requires permission for a party to file an application or submissions through a legal representative or paid agent. It is also at least arguable that such permission has been given in a de facto manner by allowing that course of conduct to this point.

[12] However, even if that is so, permission pursuant to s.596 must be able to be granted for particular purposes. Allowing parties to be represented for the purposes of seeking such permission, as in this matter, is a case in point. Accordingly, permission to be represented at the hearing was required and I was obliged to have regard to the considerations established by s.596 of the Act. The history of representation was however relevant as part of those considerations.

[13] The scheme of the Act is evident from the objects in s.381 and the terms of s.596 itself. That is, the Act encourages both efficient and informal processes where possible to deal with unfair dismissal matters subject to the overriding objective of fairness. Permission for representation is specifically required 6 and is only to be given where the considerations established in s.596(2) of the Act mean that such discretion should be exercised. These considerations point to both the circumstances of the matter and the parties themselves.

[14] In most cases where the central issue was as narrow as this one and involved the circumstances of a very small business and their ex-employee, I would be inclined not to grant permission largely for the reasons contended on behalf of the applicant. However, in this case, there are a number of other considerations that ultimately persuaded me, on balance, to the contrary view.

[15] Those considerations included the efficiency of dealing with a matter involving many witnesses in the context of clear factual disputes. Further, although the Small Business Code is to be applied in a practical manner, the issue as to what constitutes a warning has not been subject to broad consideration by the Tribunal to this point. In addition, although the applicant did not seek to be represented at the hearing itself, the fact was that the applicant had been represented for all other purposes and it was reasonable for the employer to do likewise. Particularly in these circumstances, the nature of the employer, which was apparently very small and lacking in any relevant internal resources or expertise, became an important consideration.

[16] In these particular circumstances I was satisfied that granting permission would lead to a more effective hearing and that it would be unfair, at that point, not to permit the respondent to be represented.

[17] Permission was subsequently given to the applicant to also be represented for the hearing.

THE EVIDENCE AND MATERIAL BEFORE FAIR WORK AUSTRALIA

[18] The applicant gave evidence in this matter. I found her to be a generally credible witness, however her recall of certain events was not clear or convincing and I consider that some post-event justification was present. I also found her approach to the difficulties arising in her employment to be genuine but somewhat naive.

[19] The following gave evidence for the respondent:

• Mr Steve Fulton - Managing Director;



• Mr Peter Catton - Sales Manager;



• Ms Linda Pottel - Graphic designer (and partner of Mr Fulton) who also worked in the business;



• Ms Evelyn Wessel - Office Manager who took over from the applicant; and



• Ms Irene Amanatidis - Telemarketer.

[20] Mr Fulton was a frank and impressive witness. He gave his evidence in a considered and genuine manner and was convincing on the key points. Where there is a conflict with the evidence of the applicant, I prefer his evidence.

[21] Ms Wessel was not required for cross-examination and I have accepted her witness statement on face value. I found that each of the other witnesses for the respondent to be generally reliable although in some cases they had a tendency to exaggerate and their evident personal support for Mr Fulton has tended to colour their evidence to a degree. This does not mean that I completely discount their evidence, only that I treat it with some additional caution.

[22] The other evidentiary material before Fair Work Australia includes the original job advertisement for the applicant’s role, which was in effect the only form of position description, the severance letter dated 27 October 2010, and three personal diary extracts made by Mr Fulton.

[23] I would also note that many elements of the respondent’s witness statements involved elements of opinion and hearsay. Given the issues in contention here, I have placed weight only upon the direct evidence of events in those statements for the purposes of determining this matter. I also note that it was initially contended that the applicant had acknowledged to Ms Amanatidis that her employment was in jeopardy. This was denied by the applicant and not put to the respondent’s witness by Mr See despite an opportunity to do so. I understand that the respondent does not now seek to rely upon that suggestion and I have completely ignored it.

THE GENERAL FACTS

[24] The respondent conducts a relatively small business sourcing and supplying coffee making equipment and supplies. It is apparently part of a national franchise arrangement, where the respondent is the South Australian master franchisor.

[25] The applicant commenced employment with the respondent on or about 30 September 2009 in the position of Bookkeeper/Office Administration. The applicant, who had undertaken a number of related clerical and administrative roles over her career, applied for the position having most recently worked in a variety of roles through a job agency.

[26] The major elements of the applicant’s position involved responsibility for data entry, invoicing and accounts through the MYOB accounting package, work associated with orders, dispatch and stock control, payroll, answering and directing telephone calls, and various general office duties. The position also involved support to the sales team and Mr Fulton, the Managing Director. It was subsequently agreed that the position would be titled “Office Administrator”. As the position evolved in practice, this title fairly reflected the expectations of the role.

[27] The applicant was offered and accepted the position with a salary of $45,000 per annum however in light of her then existing salary ($50,000) it was agreed that her salary would be reviewed after six months of service. It was anticipated that the review would consider establishing a rate of $50,000 however this was not guaranteed.

[28] The business of the employer was very much still in the establishment phase when the applicant commenced and it was initially based in Mr Fulton’s home for a short period pending a move to business premises. The business moved to an office and warehouse facility in November 2009.

[29] The business grew significantly in terms of clients, turnover, and staff during the latter part of 2009 and by October 2010, it had up to eight employees and three times the original client list.

[30] During the last part of 2009 and early 2010, Mr Fulton observed that the applicant was falling behind in her duties and offered assistance. The difficulties observed included the lack of adequate stock control and an untidy desk which in turn led to mistakes and a lack of an orderly procedure in dealing with some aspects of the role. I find that the importance of both stock control and the MYOB accounting work was emphasised on a number of occasions by Mr Fulton.

[31] On or about 22 March 2010, there was a tense discussion between the applicant and Mr Fulton in the context of continuing concerns held by him about elements of the applicant’s work. The applicant indicated that she was not coping and Mr Fulton offered to provide some assistance in the form of Ms Pottel, which was subsequently done. Mr Fulton also indicated that her job performance was not satisfactory and that if the deficiencies were not fixed, the respondent could not continue with her employment or give her a pay rise (as anticipated).

[32] Later in March 2010, the applicant’s salary was reviewed and became $50,000 per annum. I find that this was influenced in part by the mutual expectation at the time of employment and an indication from the applicant that she had caught up on her duties following the earlier discussion.

[33] I note that there was also a subsequent discussion about whether the role could be carried out by one person with Mr Fulton indicating that this was done interstate (at other franchises) by a person without the need for overtime. Mr Fulton however declined to provide contact details to the applicant in this regard as he did not want them to become involved.

[34] Mr Fulton also had various concerns about the handling of monies by the applicant. This included the apparent lack of a system to deal with cash payments made to the business and the absence of proper reconciliation of payments leading to the chasing of debts that had already apparently been paid.

[35] Mr Fulton spoke regularly with the applicant about the apparent mistakes being made and that they could not be tolerated. By late May 2010, Mr Fulton was actively considering the applicant’s position and received some information from the national franchisor about the qualifying period and the Small Business Code under the Act. Mr Fulton formed the view that it was not necessary for a small business to provide written warnings in order to meet the Code.

[36] The applicant did at times work long hours and I will discuss this aspect and her general work performance as part of the consideration of the Small Business Code. It is appropriate at this point however to indicate that I find the applicant’s lack of systems and inefficiency in certain respects, added to the workload. However, although there were some private activities undertaken by the applicant these were not a significant factor in my view.

[37] During June and July 2010, there were a number of issues with payments not being made that embarrassed the respondent in its business relationships. Mr Fulton considered that these occurred as a result of the absence of appropriate systems and administration by the applicant. One of these matters involved the late payment of an insurance settlement and I find that this did lead to Mr Fulton advising the applicant that her employment was at risk.

[38] In mid August 2010, Mr Fulton was advised by the applicant that some $245.00 of her own money had been banked into the respondent’s account. Later, the applicant advised that a lesser amount ($228.00) was involved and when Mr Fulton sought an explanation as to how this could occur, the applicant became emotional and was unable to provide any explanation as to what had happened. When advised by the applicant that no system for receiving cash had been put into place, a new procedure was established involving the use of the cash book. Mr Fulton advised the applicant that if this problem was to happen again, she would be let go.

[39] I interpose that Mr Fulton retained suspicions about the bona fides of the applicant’s conduct in this regard, including at the time of dismissal. I will return to this aspect as part of the consideration of the Small Business Code requirements.

[40] Mr Fulton sought advice from his accountant in the context of continuing concerns about the operation of the accounts within the business by the applicant. In due course, a MYOB specialist spent some time observing the systems in place including a limited amount of time with the applicant (due to her absence on leave).

[41] In late August 2010, Mr Fulton again spoke to the applicant and reinforced the need for stock control, clearing the piles of work on her desk and that this was her last chance to improve. A further discussion with the applicant regarding mistakes and the need to use or establish work systems was held by Mr Fulton in late September 2010.

[42] On 25 October 2010, Mr Fulton became aware that an order was being prepared by the applicant that had apparently already been sent some weeks earlier. This was discovered by Mr Catton and followed other errors in the processing of orders that Mr Fulton and Mr Catton considered were the responsibility of the applicant. I find that the evidence supports that view, at least in terms of the absence of a systematic approach to these matters by the applicant. Having spoken to Mr Catton, Mr Fulton approached the applicant at her desk and raised his concerns about the continual mistakes. The applicant was advised that if she continued to make mistakes that she would, in effect, have to be dismissed. The applicant initially became upset but some discussion about the alleged mistakes did take place.

[43] On 26 October 2010, the applicant was unable to attend work but contacted the respondent by text message seeking assistance with her work. The applicant was advised to meet with Mr Fulton at 10.00am on the next day.

[44] On 27 October 2010, the applicant attended the office of Mr Fulton with Mr Catton in attendance, as arranged by the Managing Director. Mr Fulton requested details of the matters that the applicant wanted assistance with. The applicant indicated that it may be “too late” (to seek further assistance) and in effect that the work was too much for her to handle. Mr Fulton then outlined his concerns about the mistakes and that the applicant was always behind on her work. The applicant became emotional and in due course indicated in effect that no one could handle the job. Mr Fulton then outlined what he considered to be the assistance provided to the applicant and indicated that he had concerns about the applicant’s work effort in light of that assistance and her apparent attitude to taking phone calls from the customers. I also find that it is probable that during this discussion Mr Fulton acknowledged that the applicant had at times worked long hours and that the job had changed over time.

[45] Mr Fulton then asked the applicant how the problems could be fixed without employing another staff member and no response was provided. Mr Fulton considered that the applicant had indicated that she could not do the job and then in effect informed the applicant that she was being dismissed. The applicant sought clarification as to whether she was being made redundant and Mr Fulton indicated that this was not the case. The question of notice, or pay in lieu of notice, was discussed and Mr Fulton indicated that they were obliged to pay two weeks wages but would pay four weeks and sought the applicant’s assistance with a hand over in that light. Mr Fulton also indicated that he may be prepared to give the applicant a reference if she cooperated with a hand-over of her work.

[46] During the later part of the conversation on 27 October, the applicant made some negative comments about Mr Fulton’s approach and in due course left in a distressed state with the respondent offering to allow her to remain in the office until she felt fine to leave. Mr Fulton did advise the applicant that she could attend the Melbourne Cup day staff function that had already been organised for the following week.

[47] Mr Fulton wrote a severance letter on 27 October 2010 and this confirmed to the applicant that she had been terminated effective as of that date.

[48] The applicant did not subsequently attend the respondent’s premises and she advised Mr Catton that she would not be doing so on 28 October 2010. The applicant was paid four weeks wages in lieu of notice.

[49] Mr Fulton subsequently completed an employment separation certificate and he ticked the form to indicate that the applicant had been dismissed for unsatisfactory work performance. 7

[50] I will deal with the number and substance of the alleged warnings shortly, however it is appropriate to note that these were not formalised in the sense that the discussions occurred without any formality and no record was created, other than for the simple diary notes of Mr Fulton in relation to some of the events. 8

[51] It also appropriate to observe that the environment in which these events occurred was typical of many small businesses where a team approach was generally taken and the business relationships were conducted largely in a very informal manner. The dealings between the applicant and Mr Fulton also generally reflected that environment.

WAS THE DISMISSAL CONSISTENT WITH THE SMALL BUSINESS CODE?

[52] The Act provides as follows:

“388 The small business fair dismissal code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[53] The respondent was a small business employer within the meaning of the Act.

[54] The Small Business Code provides as follows:

“Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

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.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

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 Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[55] The applicant was not dismissed summarily. In these circumstances the following matters arise for consideration:

• Did the respondent give the applicant a reason for dismissal;



• Was the reason a valid reason having regard to the applicant’s conduct or capacity;



• Was the applicant warned that she risked being dismissed if there is no improvement; and



• Did the respondent provide the applicant with an opportunity to respond to the warning and give her a reasonable chance to rectify the problem(s), having regard to the applicant’s response?

[56] In applying these requirements I must also have regard to the procedural matters highlighted within the Code.

[57] In approaching this matter I have had regard to the objects of the Act as set out in s.381 of the Act as follows:

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[58] In establishing the Fair Dismissal Code and the preliminary (jurisdictional) point associated with unfair dismissals in that context, the evident intention of Parliament was to establish a particular benchmark against which small business unfair dismissals would be initially considered. The question of fairness is to be assessed having regard to a modified set of considerations that recognise the more informal nature and circumstances of small business and the needs of employees.

[59] Without overlooking the evident relationship between the various issues and the global nature of the assessment to be made, I turn now to the particular aspects arising in this matter.

Did the respondent give the applicant a reason for dismissal?

[60] The respondent informed the applicant that he would have to “let her go” during the course of the discussion on 27 October 2010. This followed a discussion about the applicant’s capacity to do the job, the incidence of mistakes and an invitation to the applicant to indicate how they could fix the problems.

[61] I consider that the effect of the discussion was that the respondent considered that the applicant could not adequately do the job required and that this should have been understood by the applicant as the reason for her dismissal.

Was the reason a valid reason having regard to the applicant’s conduct or capacity?

[62] Having considered all of the evidence in this matter, I consider that the respondent had a valid reason for the applicant’s dismissal and that this was the reason given for that decision.

[63] The requirements of the job changed to a degree with the growth of the business and in the end, the applicant did not have the capacity to do the job as required by the employer. The mistakes being made by the applicant were to a degree a product of workload, however that workload was to a significant extent itself influenced by the applicant’s approach to matters and her apparent lack of systems and the necessary expertise to undertake some elements of that particular role. These factors substantially contributed to the mistakes.

[64] In reaching this conclusion, and indeed in determining the matter generally, I have considered the fact that Mr Fulton retained suspicions about the applicant’s handling of cash. These were in my view part of the reasons for dismissal however it is clear from his evidence that these were suspicions and that he had not formed the view that fraud had actually taken place. In that light, and at least as far as the application of the Small Business Code in this particular case is concerned, I do not consider that this element relevantly impacts upon compliance with the Small Business Code.

[65] I would add that although the applicant did not provide an explanation for the mixing of her money with the respondent’s when sought at the time, she did so during the course of these proceedings. This was plausible however it did reveal a lack of relevant systems and business acumen that would normally have fallen within the province of the applicant’s job. There is no evidence of fraud.

Was the applicant warned that she risked being dismissed if there was no improvement?

[66] The respondent has supplied a copy of a completed Small Business checklist as part of his evidence. 9 That checklist indicates that warnings were given. Particularly in the absence of any other independent confirmation of the warnings, I do not consider that this is sufficient to meet the requirements of the Small Business Code.

[67] The Small Business Code, for good reason, expresses a preference that warnings are given in writing. It is also evident from the Code that this is not required however I consider that the effect of the Code is that an employer will be required to demonstrate that the relevant warning has in fact been given and that this may be done by way of direct evidence. On that basis, I need to assess the evidence pertaining to the issue.

[68] Given the nature of the Small Business Code, it would not be appropriate to attempt to establish the precise form or set of words that would need to be used to demonstrate compliance with this element of the Code. Rather, the evident intent of the Code is clear. The respondent must have, at least once, taken steps that would have, or should have, left the applicant with the understanding that she risked being dismissed if there was no improvement in her job performance.

[69] In this case, this involves the consideration of the many “warnings” given by the respondent that elements of the applicant’s work were unsatisfactory and whether, more particularly, one or more of those warnings met the requirements of the Small Business Code.

[70] I have carefully considered the evidence of Mr Fulton and the applicant. There is ample common evidence that there were multiple times when the applicant was advised that her work performance was not good enough. Although Mr Fulton used the concept of warnings in its broadest sense, a fair assessment of the evidence is that on some occasions, these “warnings” also involved the indication that this was the applicant’s last chance to improve.

[71] I have also considered whether the fact that these warnings were not literally applied, that is the applicant was given further chances, and some contrary indications, such as the pay rise in March 2010, have undermined the effect of the warnings for present purposes. In relation to the multiple nature of the warnings, I do accept that circumstances might arise where this could be such that the effect of the warnings was undermined. However in this case, the applicant somewhat naively did not see any of the discussions as being warnings and in any event I have found that there were a number of specific occasions where a more direct and plausible warning was given.

[72] In relation to the salary increase, this occurred in the context of the original employment arrangements where the figure of $50,000 per annum was known by both parties to be the expectation for the six month’s review. Further, the respondent was at the time of the understanding that the applicant’s work performance had improved and he later formed a contrary view. I also note that the applicant sought to rely upon the fact that the respondent gave the applicant a bottle of French Champagne as an indication that her employment was valued and was not in jeopardy. However, given that this occurred after the applicant was left alone, to in effect “hold the fort” whilst all others were absent, this is more so an indication of courtesy, in the same manner as the offer to allow the applicant to attend the Melbourne Cup function after her dismissal.

[73] On balance, I find that the applicant was relevantly warned that her employment was in jeopardy as a result of continuing mistakes and deficiencies in her administration prior to the immediate events leading to her dismissal.

Did the respondent provide the applicant with an opportunity to respond to the warning and give her a reasonable chance to rectify the problem, having regard to the applicant’s response?

[74] The warnings went to the avoidance of mistakes, the establishment of a more systematic approach and the need to get on top of her work. Having regard to my findings in relation to the existence of a valid reason, the number and nature of warnings and the evidence more generally, I am satisfied that a reasonable chance to rectify the problems was afforded to the applicant given her response. This included, amongst other matters, the offer of some additional assistance and access to additional MYOB resources, however the problems were more systematic and the applicant could not or would not make the adjustment in approach required.

[75] I also consider that the respondent’s job expectations should have been understood by the applicant.

Are there procedural matters that mean that the dismissal was not consistent with the Small Business Code?

[76] To a large degree the procedural matters raised by the Small Business Code have been considered above. In terms of the opportunity to be represented, the Code provides that in discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist.

[77] There is no indication that the respondent offered the applicant a person to assist during any of the performance related discussions. There is also no indication that the applicant sought such assistance although this may in part be explained by her belief that warnings needed to be conducted with more formality than was applied by the respondent.

[78] However, the Small Business Code is permissive rather than directive in this respect, and there is no apparent requirement that an employee be offered this form of assistance. 10

CONCLUSIONS

[79] On balance, I consider that the dismissal of the applicant was consistent with the Small Business Fair Dismissal Code.

[80] Section 385 of the Act provides as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWA 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[81] All of these prerequisites must be met. As a result of my findings, s.385 means that the dismissal of the applicant is not unfair within the meaning of the Act.

[82] Accordingly, I am obliged to dismiss this application and an order 11 to that effect is being issued in conjunction with this decision.

COMMISSIONER

Appearances:

T Bourne, of Bourne Lawyers with permission for Danute Grigonis.

A See of Counsel, with permission, with J Mamaril of Mullens Lawyers, for the Adelaide Coffee Company Pty Ltd.

Hearing details:

2011

Adelaide

March 8, 10, 11

 1   Ss. 23 of the Act - the respondent employs less than 15 employees.

 2   S.383 of the Act - the applicant has over 12 months service.

 3 S.394(2) of the Act - the application was filed with 14 days of the dismissal.

 4   S.386 of the Act - the respondent accepts that it dismissed the applicant at its initiative.

 5   S.389 of the Act - the applicant has been replaced.

 6   Except where s.596(3) and (4) applies.

 7   The employment separation certificate also showed the reason for dismissal “unsuitability for this type of work” had been ticked and then crossed out. I do not consider this to be significant given the evidence touching upon the issue.

 8   Exhibits R3, R4 and R5.

 9   Attached to Exhibit R2.

 10   I note the approach taken to this issue in s.387(d) of the Act and I do not consider that the Code intended a more rigorous approach to this aspect of procedural fairness than applies in the case of non-small businesses.

 11   PR507830.

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<Price code C, PR507534>