Darrin Wearne v Support Angels Bendigo
[2019] FWC 6227
•18 SEPTEMBER 2019
| [2019] FWC 6227 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Darrin Wearne
v
Support Angels Bendigo
(U2019/3014)
DEPUTY PRESIDENT MASSON | MELBOURNE, 18 SEPTEMBER 2019 |
Application for an unfair dismissal remedy – whether dismissal was a genuine redundancy – jurisdictional objection dismissed – dismissal found not to be unfair – application dismissed.
[1] On 15 March 2019, Mr Darrin Wearne (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Support Angels Bendigo (the Respondent). The Applicant seeks monetary compensation.
When can the Commission order a remedy for unfair dismissal?
[2] Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
[4] 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:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) 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.
When has a person been unfairly dismissed?
[5] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.
Background
[6] The uncontested factual background to the matter is as follows.
[7] The Respondent is a National Disability Insurance Service (NDIS) provider based in Bendigo, Victoria and provides in-home support services to aged care and disability clients. The nature of the services provided by the Respondent is that they are provided at or in the client’s residence and as such the client ultimately decides whether particular employees of the Respondent can provide services for them. This means that where a client is uncomfortable or unhappy with a particular employee’s service, they may refuse to have that employee attend their residence, which decision the Respondent must comply with. The client may also elect to cease receiving services from the Respondent and seek an alternate service provider.
[8] The Applicant commenced employment on a casual basis with the Respondent on 8 November 2017, in a gardening/maintenance role in which capacity he was required to attend the houses of the Respondent’s clients, and maintain their lawns and gardens at times stipulated by the Respondent.
[9] The Applicant was supported in his employment with the Respondent by Ms Kirsty McDonald who is a consultant with Matchworks Bendigo (Matchworks), which is a community based not for profit employment services provider. Ms McDonald undertook the initial pre-screening of candidates for the Respondent’s gardener role which the Applicant was ultimately successful in securing. Following the Applicant’s placement with the Respondent, Ms McDonald met regularly with the Applicant as part of the post-placement support service provided to clients of Matchworks.
[10] The Applicant received a copy of the Respondent’s ‘Employee Handbook’ on commencement of his employment and received updates to it, the most recent copy acknowledged as received and reviewed by the Applicant on 26 February 2018. 1
[11] The Employee Handbook relevantly provides for the following;
• Employees must treat clients in a professional manner at all times. 2
• Employees are required to undergo a formal performance review with their immediate manager at least annually. 3
• Performance deficiencies of employees will be addressed via formal performance improvement and disciplinary process. 4
• Records of all performance improvement meetings, training and/or coaching and discussion summaries are to be retained with a copy to be placed on the employee’s file. Such retained details should include date, time and location of discussions. 5
• Where an employee’s performance doesn’t improve following performance discussions, the manager will provide a final written warning that termination of employment will occur should the required improvement not occur and be sustained. 6
• Personal records or information regarding clients are to be treated as confidential by employees both during and following cessation of their employment with the Respondent. 7
• Ex-employees of the Respondent are prevented from taking payment or any other benefit for work performed for a client of the Respondent within 12 months of cessation of their employment, and must also advise the Respondent of any approaches from a client or ex-client of the Respondent to do work outside of Respondent’s knowledge. 8
[12] In the 6 month period from 1 January – 30 June 2018 the Applicant worked an average of 19.29 hours per week and earned an average of $506.15 per week gross. 9 In the 6 month period from 1 July – 31 December 2018 the Applicant worked an average of 24.96 hours per week and earned an average of $681.21 per week.10 In the 8 week period from 1 January 2019 to the date of his dismissal on 28 February 2019 the Applicant worked an average of 14.8 hours per week.11 The data on average hours worked reveals a reduction in the Applicant’s weekly average hours in the period from 1 January 2019 up to the date of his dismissal.
[13] A number of meetings were held by the Respondent with the Applicant during his employment over concerns regarding the Applicant’s performance. These concerns included the Applicant’s failure to follow client instructions. 12 Ms McDonald also held several meetings with the Applicant as part of Matchwork’s post-placement support in response to feedback from the Respondent regarding the Applicant’s work performance, such concerns increasing in late 2018.
[14] An incident occurred on 22 February 2019 arising from the Applicant’s attendance at a client’s home. A request by the client to the Applicant that he cease pruning some bushes was not immediately complied with, and was followed by a telephone discussion between the Respondent’s Administration Manger Ms Janny Domenerie, and the Applicant during which he was directed to cease work and leave the client’s property. 13
[15] On 26 February 2019 a meeting was conducted between Mr Robert Godwell, a Director of the Respondent, and the Applicant the purpose of which was to conduct the Applicant’s annual performance review and review his employment. 14 The incident of the 22 February 2019 was discussed along with other concerns the Respondent held regarding the Applicant’s performance. Mr Godwell explained to the Applicant that the Respondent could not sustain the Applicant on the reduced hours of work caused by the loss of clients who were unwilling to have the Applicant perform work for them. The Applicant was then advised of his dismissal which took effect on 28 February 2019.15
[16] The reasons for the dismissal communicated verbally by Mr Godwell to the Applicant in the meeting of 26 February 2019 were;
• A loss of clients following complaints about the Applicant;
• The Applicant’s failure to follow client instructions; and
• The Applicant’s breach of policies in not leaving a client property on 22 February 2019 when requested to do so.
[17] On 26 February 2019 a Separation Certificate was prepared and provided to the Applicant which identified the date of employment termination as 28 February 2019. The reasons for termination cited in the Separation Certificate were ‘Shortage of work’, ‘Unsatisfactory work performance’ and ‘clients requesting not to have services from staff member’. 16 At the date of the Applicant’s dismissal he was receiving a casual hourly rate of pay of $25.28.
[18] Following termination of his employment the Applicant approached a number of his former clients of the Respondent for the purpose of seeking support in pursuing his grievance over his dismissal by the Respondent. The Applicant was contacted by the Respondent on several occasions in response to complaints made by former clients about the Applicant’s post-dismissal visits to them. A number of the complaints were formally recorded by the Respondent. 17 The Respondent directed the Applicant to cease visiting these former clients.
[19] Ms McDonald also spoke with the Applicant in relation to his post-dismissal visits to former clients and reminded him of his continuing confidentiality obligations, but despite these conversations the Applicant continued to contact former clients. The Applicant’s post-dismissal conduct of contacting former clients resulted in several clients cancelling their contracts with the Respondent. 18
The hearing
[20] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
[21] After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a Hearing for the matter (s.399 of the FW Act).
[22] Accordingly, at the Hearing on 27 August 2019, the Applicant was self-represented and the Respondent was represented by Mrs Casey Godwell, who is the CEO of the Respondent.
Witnesses
[23] The Applicant gave evidence on his own behalf and the following witnesses also gave evidence on his behalf:
• Mr David Pengelly – a family member of the Applicant’s and former recipient of services from the Respondent.
• Ms Rachel Wiktorek – former recipient of services from the Respondent
[24] The following witnesses gave evidence on behalf of the Respondent:
• Ms Casey Godwell – CEO of the Respondent
• Mr Robert Godwell – Director of the Respondent
• Ms Kirsty McDonald – Employment Consultant Matchworks Bendigo
• Ms Janny Domenerie – Administration Manager for the Respondent
Has the Applicant been dismissed?
[25] A threshold issue to determine is whether the Applicant has been dismissed from their employment.
[26] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[27] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[28] There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent effective 28 February 2019.
[29] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.
Initial matters
[30] Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
[31] Section 394(2) requires an application to be made within 21 days after the dismissal took effect.
[32] It is not disputed and I find that the Applicant was dismissed from his employment on 28 February 2019 and made the application on 15 March 2019. I am therefore satisfied that the application was made within the period required in subsection 394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
[33] I have set out above when a person is protected from unfair dismissal.
Minimum employment period
[34] It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.
[35] It was not in dispute and I find that the Applicant was an employee, who commenced his employment with the Respondent on 8 November 2017 and was dismissed on 28 February 2019, a period in excess of 6 months.
[36] It was not in dispute and I find that the Applicant was a casual employee employed on a regular and systematic basis, and had a reasonable expectation of continuing employment with the Respondent on a regular and systematic basis.
[37] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
[38] It was not in dispute and I find that, at the time of dismissal, the Applicant was covered by an award, being the Social, Community, Home Care and Disability Services Industry Award 2010 19 (the Award).
[39] Having regard to the above findings I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[40] Section 388 of the FW Act provides that 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.
[41] As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having 15 or more employees (including casual employees employed on a regular and systematic basis) at the relevant time.
[42] I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.
Was the dismissal a case of genuine redundancy?
[43] Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
[44] According to the Respondents Form F3 the Applicant’s dismissal was a case of genuine redundancy.
[45] Ms Godwell and Ms Domenie state that the Applicant’s poor work performance led to clients requesting that the he no longer attend their properties. 20 This it was said resulted in their being insufficient work available to sustain the Applicant’s employment. According to Ms Godwell, efforts were made to allocate new clients to the Applicant in the latter part of 2018 to offset the reduction in established clients willing to accept the Applicant’s services. There was also a peak in activity immediately prior to Christmas which allowed additional work to be directed to the Applicant but this fell away following Christmas.21 The Respondent also referred to the reduction in hours in early 2019.22 The Applicant stated in response that the details of the specific client complaints were never provided to him.
[46] Mr Godwell states that he was familiar with the Award that covered the Applicant in his employment with the Respondent and the consultation obligations that applied in circumstances of redundancy. 23 He referred to the various meetings held with the Applicant regarding the Applicant’s performance as evidence of the required consultation being conducted.24
[47] The evidence reveals a reduction in average hours worked by the Applicant in the first 8 weeks of 2019 to that of 14.8 hours per week. That reduction is significant having regard to the average of 24.96 hours per week worked by the Applicant in the second half of 2018. While only general evidence was given by the Respondent’s witnesses on the number of clients that requested that the Applicant no longer provide services to them, that general evidence is consistent with the significant decline in average hours worked by the Applicant in early 2019.
[48] I am satisfied that there was a 40% reduction in hours of work available to the Applicant in early 2019 as a consequence of requests from various established clients to the Respondent, that it cease providing the Applicant for gardening services to particular clients. That reduction in hours was not offset by the hours made available to the Applicant to service new or one-off clients. What is not clear on the evidence is whether the reduced hours provided to the Applicant in early 2019 was sustainable and/or whether such hours were provided to the Applicant at the expense of other employees of the Respondent.
[49] It would seem logical that, lost clients aside, if the Applicant was barred from attending particular clients’ properties than the Respondent would seek to send other employees to undertake the required work. There was however no evidence adduced as to how the Respondent dealt with client requests regarding the Applicant’s services no longer being required and whether other employees were deployed in the Applicant’s stead. Notwithstanding the reduced hours available to the Applicant there is insufficient evidence before me to be satisfied that the Respondent no longer required the work of the Applicant to be performed by anyone.
[50] If I am wrong in my conclusion as to whether the Respondent no longer required the work of the Applicant to be performed by anyone, then the matter that arises for consideration is whether the Respondent complied with the relevant consultation obligations under the Award. These consultation obligations can be found at clause 8 of the Award which variously requires the employer to;
• notify affected employees of the ‘major changes’ which includes termination of employment (clauses 8.1 & 8.5(a));
• discuss the changes with them and their representatives (if any) and specifically, the introduction of the change, the likely effects on employees and measures to avoid or reduce the adverse effects (clause 8.1(b));
• provide all relevant details to affected employees and their representatives (clause 8.2); and
• promptly consider any matter raised by employees or their representatives (clause 8.4).
•
[51] Mr Godwell attempted to characterise the various discussions held with the Applicant over performance concerns as consultation for the purpose of meeting its Award obligations, in affecting the Applicant’s dismissal on the grounds of a genuine redundancy. That contention is wholly unconvincing. The discussions held between Mr Godwell and the Applicant, which I will shortly consider, does not support the argument that the Applicant’s dismissal was that of a genuine redundancy but rather reveals a performance and misconduct based motivation for the dismissal. There is insufficient evidence to persuade me that the Respondent has complied with its Award consultation obligations which I have summarised above.
[52] Having regard to the above I am therefore not satisfied that the dismissal was a case of genuine redundancy.
[53] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
Was the dismissal harsh, unjust or unreasonable?
[54] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(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; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(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.
[55] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 25
[56] I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[57] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 26 and should not be “capricious, fanciful, spiteful or prejudiced.”27 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.28
[58] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.29 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission 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.” 30
[59] I now turn to consider the evidence in relation to whether there was a valid reason for the Applicant’s dismissal related to the Applicant’s capacity or conduct.
Evidence of respondent
[60] Mr Godwell and Ms Godwell referred to various examples of poor performance and policy breaches of the Applicant during his employment with the Respondent. 31 These concerns included;
• Exchanging personal information with clients; 32
• Leaving jobs before allocated time; 33
• Bringing a client to the Respondent CEO’s private residence on a Saturday morning without notice; 34
• Failure to follow client instructions; 35
• Refusal to leave a client’s property when requested to do so; 36
• Leaving a client’s property to undertake ‘cash’ work while he was supposed to be undertaking work for that client; 37
• Taking items for his personal use from client donation piles otherwise destined for delivery to opportunity shops (Op Shops) or the recycling centre. 38
[61] Mr and Ms Godwell state that various discussions were held directly with the Applicant regarding performance and policy breach concerns that arose during his employment. These discussions were directed at supporting the Applicant correct his performance and were supported by meetings between Ms McDonald and the Applicant. 39 According to the evidence of both Mr Godwell and Ms Mcdonald, the Applicant did not acknowledge at any stage that there were any performance issues and no change in behavior occurred.40
[62] Ms Godwell also states that employees were routinely told during regular staff meetings, to which the Applicant attended, that client instructions must be followed at all times when on a client’s property. 41 Mr Godwell also gave evidence that the Applicant declined to complete a self-appraisal form required for his annual performance review.42 When asked by Mr Godwell during the meeting on 26 February 2019 why he had refused to participate in the Respondent’s annual performance review, the Applicant stated ‘I don’t need to because I am perfect’.43
[63] Mr Godwell gave further evidence that during the meeting with the Applicant on 26 February 2019 he ran through the details of the incident that occurred on 22 February 2019, during which the Applicant refused to leave the property of a client despite being requested by the client and as subsequently directed by the Respondent to do so. 44
[64] The details of the incident of 22 February 2019 were as follows according to the Respondent;
• The Applicant was required to attend a client property and as part of that attendance was undertaking the trimming of some bushes;
• The Applicant ignored repeated requests by the client that he stop trimming the bushes and leave the property;
• The client than contacted the Respondent to complain about the Applicant’s refusal to cease work and leave the property;
• Ms Domenerie then telephoned the Applicant during which there was strong resistance from the Applicant to cease work and leave the property;
• Ms Domenerie repeatedly directed the Applicant to cease work immediately and leave the property;
• The Applicant finally accepted and followed Ms Domenerie’s instruction.
• The client contacted the police in relation to the Applicant’s refusal to cease work and leave the property.
[65] When confronted by Mr Godwell with the details of the incident of 22 February 2019 in the meeting on 26 February 2019 and asked to explain why he had failed to leave the client’s property, the Applicant variously replied to Mr Godwell that ‘the rose bushes need cutting’ and that ‘I wasn’t finished yet’. According to Mr Godwell the Applicant refused to acknowledge that client instructions must be followed at all times, that his conduct was in breach of client rights or that there were any problems with his performance. 45
[66] Mr Godwell stated that as a consequence of the loss of clients willing to accept the Applicant at their residence, his conduct and his refusal to acknowledge performance concerns Mr Godwell decided to terminate the Applicant’s employment. While a letter of termination was provided to the Applicant at the conclusion of the meeting the Respondent was unable to furnish a copy in the proceedings. The reasons cited for the dismissal in the meeting of the 26 February 2019 were;
• A loss of clients following complaints about the Applicant;
• The Applicant’s failure to follow client instructions; and
• The Applicant’s breach of policies in not leaving a client property on 22 February 2019 when requested to do so. 46
[67] Mr Godwell gave further evidence that within 3 hours of the dismissal meeting on 26 February 2019, the Respondent started receiving phone calls from clients that the Applicant had turned up at certain client properties demanding to know whether those clients had complained about him. Mr Godwell immediately contacted the Applicant and directed him to cease contacting clients of the Respondent to which the Applicant replied ‘the guy at Centrelink told him to, so go do what you gotta do’ and then hung up. 47
[68] Mr Godwell states that he then contacted Ms McDonald to seek her assistance in stopping the Applicant’s behaviour of contacting clients of the Respondent. Ms McDonald subsequently met with the Applicant during which she advised the Applicant to cease contacting clients of the Respondent. 48 The Applicants behaviour continued for several days49 despite specific directions from the Respondent and Ms McDonald, and resulted in approximately 10 clients terminating the services of the Respondent.50
Evidence of the Applicant
[69] The Applicant states that he recalled various meetings held with him during his employment with the Respondent regarding his performance. 51 He also agreed that he may have been spoken to about speaking less and listening more, that he had been counselled regarding the importance of following client instructions, and that he may have received verbal warnings to that effect.52
[70] The Applicant also conceded that he had taken one of the Respondent’s clients, Mr Pengelly, around to the private residence of Ms Godwell on a Saturday morning without authority or notice to Ms Godwell. The Applicant justified the conduct on the grounds that Mr Pengelly, who was a relative of the Applicant, needed some assistance in relation to his NDIS entitlements. 53
[71] The Applicant adduced evidence from two of his former clients, Mr Pengelly and Ms Wilktorek. Mr Pengelly confirmed the circumstances that led to him being taken to Ms Godwell’s house on a Saturday morning which aligned with the Applicant’s explanation. Ms Wilktorek gave evidence as to her satisfaction with the Applicants work quality and her dissatisfaction with the quality of service provided by other employees sent by the Respondent.
[72] The Applicant states that he could not recall being told during staff meetings that the Respondent’s staff must not call, visit or perform work for a client outside of the scheduled time nor was he aware that he must not perform work for a relative. 54 He also states that while he had acknowledged his receipt and review of the Respondent’s Employee Handbook he did not in fact read the policies thoroughly.55
[73] As regards the incident on 22 February 2019, the Applicant stated that he did not speak directly with the client but rather spoke with a carer who was supporting the client on that day. The Applicant states that he was asked by the carer to cease work which he claims to have agreed to but that it would take 5 minutes to clean up. 56 He subsequently conceded that he was also contacted by Ms Domenerie who directed to him to stop work because the client had rung and complained to the Respondent.57 He claims that he stopped work after the direction from Ms Domeneri.58
[74] The Applicant concedes that during the meeting of 26 February 2019 he was advised that his employment was to be terminated due to the complaints received from clients, his performance during his employment, his inability to follow instructions and a lack of available hours of work due to client requests that he cease to service them. 59
[75] The Applicant concedes that following his dismissal he did attend the properties of certain clients of the Respondent who he had previously provided services to; for the purpose of finding out if they were happy or unhappy with his work. 60 He also acknowledged that he was contacted by the Respondent on several occasions advising him that complaints had been made by some clients who he had visited and that he should cease that behavior.61
[76] The Applicant justified his post-dismissal client visits on the basis of alleged advice from a person at Centrelink who advised him to obtain references. The Applicant further conceded however that in speaking with former clients he may have used words to the effect that he was seeking their support ‘to take the Respondent down.’ 62 He denied approaching the former clients for the purpose of obtaining work.63
[77] The Applicant claimed not to be aware of the policy and contractual requirement that he not approach any of the Respondent’s clients after his dismissal 64, but offered no explanation as to why he continued that conduct after explicit instruction from both Mr Godwell and Ms McDonald that he should cease such visits.
Findings
[78] I am satisfied on the evidence that the Respondent held legitimate concerns regarding the Applicant’s conduct and performance. These included multiple breaches of policy and a resistance or inability of the Applicant to follow client and Respondent instructions. These concerns were not effectively rebutted by the Applicant in his evidence, in which I found him to be generally evasive and inconsistent. I consequently accept the evidence of the Respondent as to the nature and breadth of performance and conduct concerns held with respect to the Applicant which are summarized at [60] above.
[79] The incident that largely precipitated the Applicant’s dismissal occurred on 22 February 2019 in the course of the Applicant undertaking garden trimming work for a client of the Respondent. While the Applicant sought to downplay the seriousness of the incident I am satisfied that he failed to comply with requests from the client, made via the client’s carer, that he stop work and leave the client’s residence immediately. That he failed to do so was in direct breach of a core requirement of his role, that of complying with client requests. I accept that such requirement is a core requirement of the Respondent’s business as an NDIS service provider and was repeatedly reinforced with staff generally and specifically with the Applicant.
[80] I am also satisfied that it took a phone call from Ms Domenerie to the Applicant following the client’s complaint, to ultimately gain the Applicant’s compliance with the direction that he stop work and leave the client’s residence. The fact that he belatedly complied with Ms Domenerie’s direction does not alleviate the gravity of his misconduct in initially resisting the client’s request that he leave the property.
[81] The Applicant’s explanation of his conduct of the 22 February 2019 during the meeting with Mr Godwell on 26 February 2019 reveals an acute lack of awareness of the seriousness of his conduct which was in breach of the Respondent’s policy that requires employees to act with courtesy, respect and professionalism towards clients.
[82] I am further satisfied on the evidence that the Applicant’s general conduct led to a number of clients of the Respondent requesting that they not be serviced by the Applicant. This was evident in the significant reduction in hours of work available to the Applicant following Christmas 2018. The reduction in clients willing to accept the Applicant’s services was not offset by the Respondent identifying new clients for the Applicant.
[83] The clear picture that emerges is that of an employee that is either unable or unwilling to modify his behavior such that he was prepared to comply with client instructions or follow the Respondent’s policies. That failure to comply with client and Respondent instructions came to a head on 22 February 2019. I am satisfied that the general conduct and performance of the Applicant and the specific incident of the 22 February 2019 founds a valid reason for his dismissal.
[84] Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to the Applicant’s conduct. This weighs in favour of a finding that the dismissal was not unfair.
[85] While not relevant to the establishment of a valid reason for the dismissal as the following conduct occurred after the dismissal it is also clear on the evidence that the Applicant approached a number of the Respondent’s clients following his dismissal. While the Applicant denied approaching them for the purpose of obtaining work, he did concede that he approached them for the purpose of obtaining support in his grievance against the Respondent over his dismissal. The effect of those approaches was that a number of the clients felt harassed and intimidated and up to 10 of them subsequently severed their contracts with the Respondent.
[86] While the Applicant claimed that he was not aware of the requirement that he not approach former clients following his dismissal, any claimed lack of awareness of that requirement was clearly removed as a defence after he was contacted by Mr Godwell on the 26 February 2019, during which he was directed to cease contacting clients of the Respondent. I am satisfied that the Applicant ignored directions from both the Respondent and Ms McDonald and continued to contact clients of the Respondent for several days. This conduct was in breach of his continuing obligations to the Respondent in relation to respecting the confidentiality and privacy of clients. I am satisfied that the conduct of the Applicant detrimentally impacted on the business of the Respondent in that several clients were lost.
Was the Applicant notified of the valid reason?
[87] 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, 65 and in explicit66 and plain and clear terms.67
[88] The Respondent submits that Mr Godwell met with the Applicant on 26 February 2019 and detailed its concerns regarding his conduct and performance, that being the loss of clients resulting in insufficient work for the Applicant, his failure to follow instructions and the his breach of policies in failing to leave a client’s property when directed to do so. The Applicant conceded that he was notified of these reasons during the meeting held on 26 February 2019. 68
[89] Having regard to the matters referred to above, I am satisfied that the Applicant was notified of the reason for his dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms. This weighs in favour of a finding that the dismissal was not unfair.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[90] 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. 69
[91] 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. 70 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.71
[92] The Applicant gave evidence that the meeting held with Mr Godwell on 26 February 2019 only went for 10-15 minutes and that he could not recall whether he was provided with an opportunity to respond on the reasons for his dismissal. 72
[93] Mr Godwell gave evidence that during the meeting on 26 February 2019 he initially attempted to go through the Applicant’s performance review because he wanted to give the Applicant a ‘full opportunity to express and tell me what was going on during the interview, or while I had him in there going over his performance over the past four months, five months’ 73. Mr Godwell states that he was unable to complete the performance assessment and then proceeded to discuss the specific conduct concerns and gave the Applicant an opportunity to respond.74 Mr Godwell states that the Applicant responded by variously stating ‘that’s the way the cookie crumbles’ and ‘you do what you’ve got to do’.75
[94] I find the Applicant’s lack of recollection of the meeting details unconvincing and prefer the evidence of Mr Godwell in relation to the meeting. I am consequently satisfied that Mr Godwell met with the Applicant on the 26 February 2019, and that during the course of the meeting gave the Applicant an opportunity to respond to the specific conduct and performance concerns held by the Respondent.
[95] In all the circumstances, I find that the Applicant was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss him being made. This weighs in favour of a finding that the dismissal was not unfair.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[96] 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.
[97] 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.”76
[98] The Applicant acknowledged that he did not request a support person for or during the meeting on 26 February 2019. 77
[99] I am satisfied that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal. This criteria is therefore a neutral consideration.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[100] The Applicant’s dismissal was related to both misconduct and performance concerns. To the extent that the dismissal relied on the Applicant’s performance it is necessary to consider whether he was warned in relation to those concerns.
[101] Mr Godwell referred to multiple meetings held with the Applicant to discuss concerns over his performance and conduct and states that the Applicant was specifically warned of the consequences if there was no improvement. 78 Ms Godwell also gave evidence of her discussions with the Applicant regarding various issues including; taking items from clients’ donation piles, leaving a client’s property to do a cash job, exchanging personal information with clients and leaving jobs before allocated times.79
[102] Ms McDonald gave supporting evidence as to the various meetings she held with the Applicant in both Matchwork’s offices and also at the Respondent’s office. 80 She also referred in her evidence to the feedback she also gave to the Applicant regarding the potential consequences if his performance did not improve.81
[103] I accept that numerous discussions were held with the Applicant over several months involving Mr Godwell and Ms Godwell as well as discussions between Ms McDonald and the Applicant, all directed at correcting the Applicant’s performance and conduct deficiencies. These discussions did not have any material impact on the Applicant’s conduct or performance.
[104] I note that with the exception of the incident that occurred on 22 February 2019, no details of the time, date or location of the various incidents that were referred to by the Respondent in evidence were documented. Nor, despite the Performance Improvement Policy to which I have referred to at [11] above, were any records available of the discussions held with the Applicant arising out of the concerns held by the Respondent. The lack of formal records was conceded by the Respondent. 82
[105] Notwithstanding the absence of formal records of the discussions and/or warnings, the evidence of Ms Godwell, Mr Godwell and Ms McDonald was consistent as to the conduct of numerous meetings with the Applicant at which he was counselled and warned regarding his performance and conduct. Furthermore, the Applicant acknowledged that he had been spoken to by the Respondent and while his recollection was unclear in some respects he conceded that he may have been counselled and/or warned in respect to his failure to follow client instructions.
[106] In all the circumstances, I find that the Respondent did warn the Applicant of his unsatisfactory performance before dismissal. This weighs in favour of a finding that the dismissal was not unfair
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[107] The Respondent stated in its Form F3 that at the time of the Applicant’s dismissal it employed 58 employees. Its administration staff, apart from Mr Godwell and Ms Godwell, consisted of an office administrator and two other staff that provide telephone back-up, rostering and payroll functions. Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact. This criteria is therefore a neutral consideration.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[108] I am satisfied in the circumstances that the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise was unlikely to have impacted on the procedures followed in effecting the dismissal. This criteria is therefore a neutral consideration.
What other matters are relevant?
[109] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[110] The Applicant submitted that there was pressure to complete work according to a tight schedule which meant that at times he was delayed in arriving at particular client properties which annoyed some clients. No evidence was adduced in support of the submission nor was it made clear how his late arrival at a particular client’s property had impacted the Respondent’s decision to dismiss him.
[111] I do not regard the additional matter raised by the Applicant or any other additional matters that arose in the proceedings as relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
[112] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 83
[113] In reaching my conclusion I have had particular regard to the establishment of a valid reason (s387(a)) for the dismissal and that the process followed by the Respondent was procedurally fair (ss387(b)-(e)). These factors weighs in favour of a finding that the dismissal was not unfair. There are no other factors that militate against a finding that the dismissal was not unfair.
[114] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable.
Conclusion
[115] 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.
[116] The application is dismissed. An Order will be issued in conjunction with this decision to that effect.
DEPUTY PRESIDENT
Appearances:
D. Wearne on his own behalf.
C. Godwell on her own behalf.
Hearing details:
2019
Bendigo
27 August
Printed by authority of the Commonwealth Government Printer
<PR712096>
1 Exhibit R9, Employee Handbook Support Angels & Acknowledgement of Policy dated 26 February 2019
2 Ibid, Personal Conduct at page 4
3 Ibid, Performance Management at page 18
4 Ibid, Performance Improvement at page 19
5 Ibid
6 Ibid
7 Ibid, Confidentiality Standards at page 23
8 Ibid, Intellectual Property Standards at page 24
9 Exhibit A3 Payslips for period 1 January – 30 June 2018
10 Ibid, Payslips for period 1 July – 31 December 2018
11 Exhibit A2 Fortnightly Time Sheets
12 Transcript at PN726
13 Exhibit R2, Witness Statement of Ms Janny Domenerie dated 28 May 2019
14 Transcript at PN733
15 Exhibit R3, Witness Statement of Mr. Robert Godwell dated 28 May 2019
16 Exhibit R6, Employment Separation Certificate dated 26 February 2019
17 Exhibit R5, Client Complaint Forms
18 Transcript at PN643 (Domenerie evidence)
19 MA000100
20 Transcript at PN637-PN639,
21 Ibid at PN1064-PN1065
22 Exhibit A2 Fortnightly Time Sheets
23 Transcript at PN783, PN820
24 Ibid at PN820-PN823
25 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].
26 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
27 Ibid.
28 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
29 Edwards v Justice Giudice [1999] FCA 1836, [7].
30 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
31 Exhibit R4, Witness Statement of Ms. Casey Godwell, dated 28 May 2019
32 Transcript at PN995-PN997
33 Ibid at PN1001
34 Ibid at PN177-PN178
35 Ibid at PN726
36 Ibid at PN770-PN771
37 Ibid at PN990
38 Ibid at PN981-PN982
39 Exhibit R4, Transcript at PN531-PN537, PN797-PN799,
40 Transcript at PN539-PN543, PN726-PN728
41 Ibid at PN796
42 Exhibit A6, Self Appraisal and Annual Performance Review Forms
43 Exhibit R3, Transcript at PN733
44 Exhibit R3
45 Ibid
46 Transcript at PN792-PN795
47 Exhibit R3
48 Transcript at PN557
49 Ibid at PN 560-PN561
50 Ibid at PN643
51 Ibid at PN156
52 Ibid at PN174-PN176
53 Ibid at PN177-PN178
54 Ibid at PN187
55 Ibid at PN1071-PN1078
56 Ibid at PN215
57 Ibid at PN222-PN224
58 Ibid at PN225
59 Ibid at PN231
60 Ibid at PN131-PN132
61 Ibid at PN147-PN148
62 Ibid at PN135
63 Ibid at PN127-PN128
64 Ibid at PN123
65 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
66 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
67 Ibid.
68 Transcript at PN231-PN232
69 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].
70 RMIT v Asher (2010) 194 IR 1, 14-15.
71 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
72 Transcript at PN271
73 Ibid at PN733
74 Exhibit R3
75 Transcript at PN740
76 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
77 Transcript at PN272-PN273
78 Ibid at PN797-PN800
79 Ibid at PN981, PN990, PN995
80 Ibid at PN528-PN534
81 Ibid at PN543
82 Ibid at PN1063
83 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
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