Deidre Te Wano v Just Property Management Pty Ltd
[2022] FWC 2493
•19 SEPTEMBER 2022
| [2022] FWC 2493 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Deidre Te Wano
v
Just Property Management Pty Ltd
(U2022/3784)
| COMMISSIONER WILLIAMS | PERTH, 19 SEPTEMBER 2022 |
Application for an unfair dismissal remedy
An application has been made by Ms Deirdre Te Wano (the applicant) for unfair dismissal remedy under section 394 of the Fair Work Act 2009. The respondent is Just Property Management Pty Ltd.
At the hearing of this matter evidence was given by applicant, who also called Ms Zoe Johnson and Ms Dairne Smith. For the respondent, evidence was given by Ms Cara Nash, the respondent’s Department Manager, Ms Anastasia Ierace, Ms Amanda Mariotti and Ms Amy Fogg, all of whom are employees of the respondent.
Evidence and factual findings
The respondent is involved in real estate and property management.
The applicant was first employed in October 2017. Her dismissal took effect on 18 March 2022.
The applicant’s employment was covered by the Real Estate Industry Award.
At the time of her dismissal the applicant was a Property Manager. The applicant was a casual employee who worked Mondays Tuesdays and Wednesdays.
Part of the applicant’s duties involved conducting routine inspections of rental properties to assess the condition of the property and to confirm compliance with the tenancy terms and conditions.
The evidence of Ms Nash is that the applicant would commonly have 25 to 30 property inspections booked per week. Tenants are notified by email of the date of the forthcoming inspection and that if they are not home at that time the respondent’s staff will enter the premises using the respondent’s keys. Consequently, in practice, during any given week a lesser number of the property inspections occur when the tenant is present.
The respondent’s business is in the south-west region of Western Australia.
It is a known fact supported by the evidence that this region was the subject of Western Australian Government imposed COVID 19 response measures in early 2022.
These measures included mandatory wearing of face masks in a range of situations.
I accept the evidence of Ms Nash that from around mid-January 2022 the respondent caused signs to be erected on both the front and rear entrance to the respondent’s premises regarding COVID 19 precautions.
I accept the evidence of Ms Nash and of each of the respondent’s other witnesses that these signs indicated that face masks must be worn on the premises.
The evidence of Ms Nash is that on the morning of 9 March 2022 the applicant entered the respondent’s premises to collect the tenancy keys and the respondent’s iPad to commence her shift without wearing a face mask. The applicant walked towards staff grouped together for a meeting all of whom were wearing face masks, which alarmed Ms Nash.
Consequently, Ms Nash asked the applicant where her mask was but the applicant only responded with words to the effect of “nah it’s all good”. Ms Nash says she responded by advising the applicant that she needed to be wearing a mask at all times when working and asked her to please put her mask on. Her evidence was that the applicant then turned and left the premises.
The evidence of Ms Ierace is that she both witnessed and overheard this interaction on 9 March 2022 between Ms Nash and the applicant and she confirms Ms Nash’s evidence as to what occurred.
Under cross-examination the applicant’s evidence was that she did not remember this interaction with Ms Nash happening. She says she does not recall being told to wear her mask by Ms Nash on this occasion.
Considering the evidence of these three witnesses I accept what occurred was as Ms Nash and Ms Ierace say.
All the witnesses gave evidence as to the wearing of face masks in the office.
Generally, the applicant’s witnesses say that face mask wearing was not enforced by the respondent and people just used common sense. The applicant’s witnesses however all said that the receptionists who would meet and greet clients and customers wore face masks and other staff who were meeting with clients or customers would then wear face masks.[1]
The respondent’s witnesses differed in their evidence generally by saying that face mask wearing was enforced by the respondent. However, at varying times over the last two years in circumstances where the staff are sitting two meters or more apart, face masks might not be worn whilst they were at their desks or when they are eating or drinking.[2]
The respondent’s witnesses similarly to the applicant’s witnesses agreed that receptionists and staff would wear face masks when meeting and greeting clients or customers.
The evidence, which is not challenged is that the respondent took various steps to alert tenants to the particular safety and health steps with respect to COVID 19 the respondent was taking and similarly the respondent communicated with contractors and others, who would from time to time enter premises occupied by tenants, as to the respondent’s expectations that they would take appropriate precautions regarding COVID 19.
Under cross-examination the applicant’s evidence was that, contrary to the evidence the Commission has accepted, she does not recall seeing any signs on the entrances to the respondent’s premises that indicated face masks should be worn.
Her evidence was that she would wear a face mask in the office when she needed to and when she was told to do so and when she was told to by Ms Nash.
However, she says she does not recall being told between January 2022 through to March 2022 to wear a face mask.
The applicant’s evidence was that she was aware in March 2022 that she was required to and did wear a face mask when shopping.
The applicant is aware of the respondent having a Facebook group chat which was used to pass information on to staff which included, amongst other things COVID 19 issues.
The evidence is that due to the nature of the applicant’s role she did not have a work email address. Communication with the applicant was by text message.
The evidence of Ms Nash which I accept is that on 25 January 2022 she sent a text message to two staff members, one of whom was the applicant and the other was Alexia advising them that due to the new COVID cases in Bunbury:
“.. can we please make sure that you are wearing masks for all inspections, using hand sanitiser regularly, wiping down iPads with antibacterial wipes between each inspection please et cetera. To reduce risk of infection… There are some masks, wipes et cetera at work if you would like to stock up the car when you head out.”
The message continued that masks would be provided by the respondent.
The evidence is that the normal method of communication with the applicant was by text message, and it was by this method Ms Nash and the applicant communicated. This is confirmed in the applicant’s statement[3] wherein her evidence is that she received and replied to various text messages from Ms Nash. This is also confirmed by copies of numerous text conversations between the applicant and Ms Nash provided to the Commission.[4] The applicant did not dispute that that is the method of communication between her and Ms Nash.
The applicant’s evidence however was that she does not recall receiving that 25 January 2022 message from Ms Nash directing her to wear a mask for all property inspections. The applicant however explained that having since spoken to the other staff member who received this same text message (Alexia) the applicant accepts that this message was in fact sent to her by Ms Nash on 25 January 2022.
The applicant’s evidence under cross-examination was that she did not think she was required to wear a face mask when conducting a property inspection when the tenant was present. Her evidence was that she would wear a face mask when asked to do so by the tenant. If they did not ask her to, she would not wear a face mask. She explained that she would not wear a face mask if they didn’t have a face mask on themselves.
The evidence is that the applicant conducted property inspections where tenants were present on Monday 7, Tuesday 8 and Wednesday 9 March 2022.
The evidence is that while undertaking inspections on these days the applicant by her own admission did not wear a face mask.
On both Tuesday 8 and Wednesday, 9 March 2022 she inspected two properties where the tenants were present, a total of four properties, without wearing a face mask. The respondent was unaware of this at the time.
On Wednesday 9 March 2022 a tenant complained, in a phone call taken by Ms Ierace, that the applicant had inspected her premises that morning and was not wearing a face mask. The tenant asked whether the respondent’s inspectors should be wearing face masks during property inspections and Ms Ierace advised her that yes they should. The tenant told her that the woman who had done her inspection did not wear a face mask and the tenant wasn’t very happy about it because she was being cautious due to her work.
There is no dispute that the tenant was complaining about the inspection undertaken by the applicant.
The evidence is this inspection was undertaken by the applicant only a few hours after Ms Nash had told the applicant at the office that she should be wearing a face mask when working.
Ms Nash was made aware of the complaint and then considered what action should be taken.
On Monday, 14 March 2022 around 7 AM the applicant, by text message, advised Ms Nash that the applicant had tested positive to COVID 19 and so would not be able to attend work.
Ms Nash by text message enquired whether the applicant had worn a mask at her inspections the previous week and the applicant admitted in her reply text message that she had not worn a mask at all while undertaking property inspections the week prior. She provided Ms Nash with a list of tenants who were home at the time of their premises being inspected while she was not wearing a mask. This was the four tenants referred to above.[5]
Around 6 PM on 14 March 2022 Ms Nash contacted the applicant by text message to ask if they could arrange a time to discuss her employment and advised the applicant she was welcome to have a support person present.
The applicant says she declined this request initially as she was feeling unwell and was too scared to make the decision, as she was petrified of what they wanted to talk to her about.
On 18 March 2022 Ms Nash via a zoom video met with the applicant and her support person. Ms Nash discussed with the applicant her failure to wear a mask at the routine inspections the previous week and that she had been advised at about 9 AM on the morning of 9 March 2022 to wear a mask when working.
Ms Nash asked the applicant what had happened and why she didn’t wear a face mask at her property inspections. She told the applicant they had received a complaint from a tenant who was concerned that the applicant had come through her property unmasked and the tenant worked in an aged care facility, and this was putting the tenant and her patients and the tenant’s job at risk.
The applicant confirmed that she did not wear a face mask at all the previous week’s inspections. When asked if there was a reason for this the applicant advised that when doing the inspections, she had the mask in her hands but stated that she had “full hands and did not put it on”.
The applicant’s evidence was that she told Ms Nash she was not aware that she had to wear a face mask while undertaking property inspections. She says in her evidence that Ms Nash referred her to a text message Ms Nash had sent her that the applicant had obviously missed back in January stating that we should protect ourselves and wear face masks. She says she told Ms Nash that she unfortunately did not see that text message and questioned why she would risk her employment of five years working there.
Ms Nash advised the applicant that she had failed to adhere to a reasonable and clear instruction provided by herself and that her failure to do so caused a serious health and safety risk to tenants. She told her that her decision not to wear a face mask was not consistent with her continuing to work for the respondent.
Later that day the respondent sent the applicant a termination of employment letter.
The letter refers to their meeting that day to discuss the applicant’s failure to wear a mask at inspections as per the instruction from her manager. The letter says the respondent considers her actions constitute serious misconduct warranting summary dismissal.
The letter explains she will be paid any outstanding pay up until 18 March 2022 her last day of employment.
The legislation
The matters for which the Commission must have regard when determining this application are prescribed in section 387, which is set out below:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); 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.”
Consideration
Valid reason
By the applicant’s own admission, when conducting property inspections where tenants were present during the week beginning Monday, 7 March 2022 she had not worn a face mask.
Not wearing a face mask was contrary to the specific direction given to the applicant by her manager in the text message on 25 January 2022 (that masks are worn for all inspections) and was contrary to the respondent’s direction at that time that its employees wear face masks when working, which Ms Nash reminded the applicant of on the morning of Wednesday, 9 March 2022 immediately before she left the office to undertake property inspections.
The respondent’s direction to the applicant to wear a face mask at work and specifically at property inspections, at that time in March 2022, was both a lawful and reasonable direction.
Failing to wear a face mask as directed while conducting property inspections was a valid reason for the applicant’s dismissal related to the applicant’s conduct.
Notification of the reason
During the video meeting on 18 March 2022, the applicant was notified of the reason the respondent was considering dismissing her from her employment which was that she had failed to comply with the employer’s direction to wear a face mask while conducting property inspections.
Opportunity to respond
During the meeting on 18 March 2022 the applicant was given an opportunity to respond to the reason the respondent was considering dismissing her. She did give her explanation.
Unreasonable refusal of a support person
There was no refusal by the respondent to allow the applicant to have a support person present during the discussion relating to her dismissal. The applicant was accompanied by her support person during this discussion.
Warnings
The reason for the dismissal was not related to the applicant’s performance but rather to her conduct. Consequently, there had been no warnings about the applicant’s performance.
Size of the enterprise and dedicated human resource management specialists
The enterprise is quite a small business and there is no evidence that its employs dedicated human resource management specialists in house. Notwithstanding this the procedure followed in affecting the applicant’s dismissal was appropriate in the circumstances.
Other matters
The applicant was employed as a casual employee.
The applicant had worked for the respondent for approximately 4 1/2 years.
The evidence is that quite separately from failing to wear a face mask when undertaking property inspections the applicant had not worn a face mask when attending the office, as was required, on the morning of 9 March 2022. Her response to Ms Nash who reminded her that she was required to wear a face mask was dismissive and unapologetic.
The applicant in her evidence explained her view was that wearing a face mask was only required if the tenant who was present asked her to wear one. Besides the fact that she was required to wear a mask, this approach, of putting the onus on the tenant to tell her to wear a face mask, ignores the reality that the relationship between the applicant as the person conducting an inspection and the tenant involves some power imbalance.
It is likely that some tenants would be reluctant to challenge the applicant when she knocks on their door not wearing a face mask, by telling her to put her face mask on. Obviously receiving a negative property inspection may be problematic for the tenant and that possibility is disempowering for them in these circumstances.
The Commission is not suggesting the applicant behaved inappropriately towards tenants but only that she has failed to appreciate that when someone allowed her to enter without her face mask on, they may not really have been making a free choice.
It is also apparent the applicant does not appreciate the seriousness of her failing to wear a face mask during inspections. This is concerning given that the applicant had been told that the tenant who complained about her not wearing a face mask worked in an aged care facility and she felt the applicant was placing her and her patients at risk and was placing the tenant’s job at risk.
The risks COVID 19 poses for the residents of aged care facilities is notorious.
Conclusion
The evidence which the Commission has accepted is that the applicant either did not see or did not remember the text message from Ms Nash which the Commission accepts was sent to the applicant on 25 January 2022, directing her to wear a face mask when undertaking property inspections.
In this case the parties used text messages as their normal method of communication. In 2022 this is a very common method of communication particularly with a casual employee.
The evidence is that the applicant did not have a work email address.
I do not view communication between an employee and an employer by text message as qualitatively different from communicating by email or indeed posted letter.
Where the employer and the employee use text messages as their method of communication, the onus is on the employee to read and act on text messages received from their employer, just as it is if the employer had sent them an email or a letter.
It is no excuse for an employee to simply say the reason they failed to comply with an employer’s direction sent to them in an email or letter was that they had not seen it or forgot it. The same applies when that direction is sent to them in a text message from their employer.
The evidence is that at the meeting on 18 March 2022 the applicant explained that she was not aware that she had to wear a face mask at inspections and that she had obviously missed the text message from Ms Nash back in January 2022.
In this case I have accepted that the applicant either did not read the text message sent to her by Ms Nash on 25 January 2022 or alternatively she had did read it but had forgotten about it. Neither explanation however is an acceptable reason for her not to have complied with the direction to wear a face mask when undertaking property inspections. The onus remains on the applicant to read and follow directions she received from her employer.
The applicant’s explanation means however that, contrary to the submission made on behalf of the respondent, the evidence does not support a finding that the applicant not wearing a face mask at property inspections, was wilful or deliberate conduct. The applicant was not deliberately and knowingly refusing to carry out her employers lawful and reasonable direction.
Consequently, the Commission’s decision is that the applicant has not committed serious misconduct justifying summary dismissal.
The Commission’s decision is that only to that extent is the dismissal harsh.
For that reason only I find the dismissal was unfair.
Had the respondent decided to dismiss the applicant and give her notice of her termination or alternatively to pay her in lieu of that period of notice the dismissal would not have been harsh.
Remedy
Considering the requirements of section 391 the Commission is satisfied that the reinstatement of the applicant in the circumstances here is inappropriate.
The Commission does however consider that an order for the payment of compensation is appropriate.
Turning to consider the criteria prescribed in section 392 for determining an amount of compensation, firstly there is no evidence that an order of compensation would affect the viability of the respondent’s enterprise.
Next the applicant’s length of service as a casual employee was approximately 4 1/2 years.
If the applicant had not been summarily dismissed, she would have remained in employment for the equivalent of her notice period. Under the Award, clause 29 ‘Termination of Employment’ provides that notice of termination by an employer is set out in section 117 of the Act.
S.117 provides that for an employee with more than 3 but not more than 5 years’ service the period of notice is three weeks.
A series of payslips have been submitted by the respondent which show an average fortnightly pay of $1,081.25 gross.
Consequently, the remuneration she would have earned if she had not been dismissed is 3 weeks’ pay, being $1621.87 gross.
The applicant has applied for a number of positions unsuccessfully and has only recently gained employment. I am satisfied that she has made appropriate efforts to mitigate her loss.
The applicant has not earned any remuneration since her employment ended.
There was in this case some misconduct on the applicant’s behalf. However, given the amount of compensation that will be ordered is limited to the notice period I do not believe it is appropriate for the amount of compensation to be reduced in this instance.
Consequently, the amount of compensation will be $1621.87 gross to be paid within 21 days. An order to that effect will now be issued.
[1] Attachment to Ms Nash statement email to reception 25 January 2022 “Covid Precautions *please leave for job share partner to read”
[2] Attachment to Ms Nash Statement, email to staff 21 February 2022 from Mr Standley “Face Masks”
[3] Exhibit A1
[4] Txt Messages conversations in December and January 2021, February 10, 14 and 15, March 17 and 18 2022 for example
[5] Attachment 6a and 6b to Ms Nash statement
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