Denies Anastasiou v B.I.C Services Pty Limited T/A BIC Services
[2015] FWC 7591
•6 NOVEMBER 2015
[2015] FWC 7591
The attached document replaces the document previously issued with the above code on 6 November 2015.
1. At paragraph 8 and 40, the name “Claudio” is replaced with “Claudia”
2. At paragraph 24 and 36, the title “Mr” is replaced with “Ms”.
Melissa Phang
Associate to Deputy President Bull
Dated 9 November 2015
| [2015] FWC 7591 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Denies Anastasiou
v
B.I.C Services Pty Limited T/A BIC Services
(U2015/8488)
DEPUTY PRESIDENT BULL | SYDNEY, 6 NOVEMBER 2015 |
Application for relief from unfair dismissal, Dismissal with notice due to poor conduct, Not unfair, application dismissed.
[1] On 14 June 2015, Ms Denies Anastasiou (the applicant) made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Anastasiou’s employment had been terminated by B.I.C Services Pty Ltd (the respondent) on 25 May 2015. B.I.C Services provides cleaning, waste, recycling and hygiene services.
[2] Ms Anastasiou was employed as a cleaner by the respondent and worked 20 hours per week Monday to Friday between the hours of 6:00pm and 10:00pm. Ms Anastasiou’s workplace was 25 Bligh St Sydney where the respondent provided the cleaning service for the building. The respondent’s client at 25 Bligh St was Kingsmede a private property investment house specialising in ownership and in house management of commercial and industrial properties.
[3] The matter was the subject of conciliation on 14 July 2015; however, the matter was not resolved. Consequently, the matter was listed for hearing and directions were issued on 23 July 2015. Ms Anastasiou failed to file her submissions by the due date of 3 August 2015, and consequently, the matter was listed for a non-compliance hearing on 7 August 2015.
[4] An extension for Ms Anastasiou to file her submissions and material by 24 August 2015 was subsequently granted. On 26 August 2015, Ms Anastasiou requested a further extension to file her documents.
[5] On 27 August 2015, B.I.C Services objected to the granting of an extension to Ms Anastasiou to file her material, and sought the dismissal of Ms Anastasiou’s application pursuant to s.399A of the Act for non-compliance with directions.
[6] The respondent’s s.399A dismissal application was dismissed by DP Gooley on 23 September 2015 and the matter was subsequently referred to me for determination, and the matter was heard on 5 November 2015.
[7] In the applicant’s correspondence to the Commission on 11 September 2015, Ms Anastasiou stated that her English reading and writing skills are poor and relied on the assistance of her daughter with her written submissions, although she was not present at the hearings. Ms Anastasiou required the assistance of a Greek language interpreter to present her case and give her evidence.
[8] Ms Claudia Di Bello, Human Resources Manager of B.I.C Services Pty Ltd, appeared for the respondent and also gave evidence.
Background
[9] Ms Anastasiou commenced employment with the respondent on 3 November 2010 as a part-time cleaner and was dismissed by B.I.C Services on 25 May 2015 she was provided with 4 weeks’ pay in lieu of notice, the termination letter was in the following terms:
“This letter is to confirm the reason for the termination of your employment.
You have continued to harass and approach our clients to discuss workplace issues and you have also defamed our employees and more recently our client’s employee.
Our client has made numerous verbal complaints and has also made a written complaint regarding these issues and is now requested that you be removed from site.
You have ignored repeated verbal warnings to not approach our clients both from our client and also from your Supervisor and Manager.
We held a formal meeting with you at our head office on Thursday, 5 February 2015 in which it was clearly explained that all workplace issues must be addressed with your Supervisor and Manager and that no time were you to discuss these matters with our clients. At this time; you agreed to this policy and agreed to not approach our clients to discuss workplace issues.
During a further formal meeting at our head office on Monday, 25 May 2015, you admitted to again approaching our clients to discuss workplace issues and to complain about the Facility Manager. You also admitted that your daughter had called our client to discuss workplace issues on your behalf. During this same meeting you also advised that you had approached every tenant to request letters on your behalf in case you had workplace issues and you needed evidence – we regard as conduct as harassment. In this same meeting we stated that this conduct was not acceptable and you then advise that you had no intention of changing your conduct or adhering to this policy. He then subsequently made threats to have our client dismissed by advising that you would approach our clients” boss should you be terminated.”
Following our meetings and a written warning on 17 February 2015, the Company is of the view that your conduct is not acceptable and as such your employment will be terminated as of 25 May 2015
You will be paid in lieu of notice in accordance with your entitlements.
Please surrender all Company property immediately to our Head Office”
[10] Ms Anastasiou denies the allegations made in the termination letter and alleges that the dismissal was harsh, unjust and unreasonable. Ms Anastasiou seeks the remedy of reinstatement and compensation. Ms Anastasiou has been unable to find alternative employment, and her husband is ill and unable to work.
Submissions and Evidence of Ms Anastasiou
[11] Ms Anastasiou submitted an outline of submissions, 1 a written statement,2 and gave evidence and was subject to cross examination by Ms Di Bello on behalf of the respondent.
[12] Ms Anastasiou has worked for B.I.C services for 5 years as a cleaner on a part-time basis in the ‘Bligh Street’ building, which involved the cleaning of several levels of toilets, showers and kitchens, and would do so mostly unsupervised. Ms Anastasiou states that in her 5 years of employment with the respondent, there had not been any issues with her employer.
[13] At around the end of 2014, the respondent employed a new supervisor Mr Mohamed Rahman and Area Manager Yildiz Ergin. Ms Anastasiou submitted that Mr Rahman had a second job which affected his work output (including having to leave work early and coming in to work late), and would seek her assistance to help him with his daily duties. This increased Ms Anastasiou’s workload, placing stress and pressure on her. Ms Anastasiou says was not compensated for these additional duties.
[14] Ms Anastasiou states she was also requested by her supervisor, Mr Rahman to lift extremely heavy garbage bags which resulted in her suffering a hernia and attendance in hospital, and now remains on a waiting list for treatment. As a result, Ms Anastasiou was no longer able to perform the additional duties requested by Mr Rahman and notified him of this. Mr Rahman subsequently became angry and resentful, with a ‘new complaint’ every day.
[15] Ms Anastasiou advised her Manager, Ms Yildiz Ergin of the issues with Mr Rahman when she would visit the work site which was once a week, but Ms Ergin did ‘not care’. The applicant submits that Ms Ergin was unapproachable, and angry towards the applicant, and told Ms Anastasiou that she was not telling the truth, which caused the applicant to feel scared and concerned that she was unable to raise these issues.
[16] In late 2014 and early 2015, Ms Anastasiou was constantly stressed due to work, and worried about attending work and had to see a doctor once a week. Ms Anastasiou requested from the respondent’s Human Resources Manager, Ms Di Bello to be moved to another work site/building. This was declined by Ms Di Bello.
[17] Ms Anastasiou states that on many occasions, when working, the lights would go out and because it was dark, she was unable to see, she blamed Mr Rahman for this. On one occasion, Ms Anastasiou fell and injured herself. She approached Mr Rahman about this, and he responded by telling her to ‘f…k off’.
[18] Ms Anastasiou had advised her daughter regarding these work related issues. Ms Anastasiou’s daughter subsequently called the respondent’s head office and spoke to Zac Bosnjak, the Operations Manager who advised her that he would ‘sort everything out’. 3 However, the circumstances at work did not improve.
[19] Ms Anastasiou states that she has always been friendly to clients in the building. On one occasion Ms Anastasiou was very upset as she had been verbally abused by Mr Rahman, and a client in the building ‘Natasha Steed’, who is the Senior Portfolio Manager for Kingsmede the respondents client had witnessed this and subsequently gave Ms Anastasiou her business card and advised that it was ‘ok’ to call her anytime. Ms Anastasiou states that Ms Steed was a friend and had spoken to the applicant herself about her own personal issues.
[20] Ms Anastasiou was told by Mr Rahman that he was not happy with her greeting clients in the building, and advised her not to do so. Ms Anastasiou states that she had overheard Mr Rahman calling Ms Ergin, the Area Manager and telling her that she had been greeting the clients on a regular basis and not performing her duties. Ms Anastasiou states this is not true.
[21] On 22 May 2015, Ms Anastasiou was sent a text requesting her attend a meeting on the following Monday morning, being 25 May 2015. Ms Anastasiou responded by requesting that the meeting be rescheduled as her daughter was unable to attend the meeting with her on that date. The respondent replied by stating that this was not possible and that if the applicant was not to attend, she would not have a job to return to. 4
[22] At a meeting on 25 May 2015, Ms Anastasiou was dismissed by the respondent’s Human Resources Manager, Ms Di Bello; at the head office in Ryde which she says occurred without proper notification of the basis for the dismissal. Ms Anastasiou’s written evidence was that she was not given an opportunity to respond before her termination of employment, and when she attempted to discuss the termination, she was told to ‘shut up’ by Ms Di Bello. 5
[23] Ms Anastasiou denies any misconduct as outlined in the termination letter of 25 May 2015, and further submits that the dismissal was unreasonable, and that she was not provided with adequate warnings with respect to her unsatisfactory conduct prior to the dismissal
[24] In respect to Ms Anastasiou’s evidence what was provided in writing, apparently prepared by her daughter provided some semblance of logic, however Ms Anastasiou’s evidence in the witness box was rambling and unfocused and delivered in a belligerent and agitated manner. At times Ms Anastasiou forcibly struck the witness box with her hand to emphasise a point.
[25] Ms Anastasiou’s oral evidence did not address the key issues involved in her termination, and did not specifically refute the allegations contained in her termination letter. In cross examination Ms Anastasiou’s response to what was put to her was that it was “all lies”. A frequent response to anything detrimental to her case was that it was “bullsh.t”
[26] In response to the complaint about her from Natasha Steed Ms Anastasiou said that Ms Steed was made to write the complaint about her. Ms Anastasiou further stated that an email sent by the Area Manager listing a number of examples of poor performance was fabricated.
[27] The majority of Ms Anastasiou’s oral evidence concentrated on the ill treatment of her by the respondent, and in particular her supervisor, Mr Rahman who would target her unfairly. Ms Anastasiou alleges that prior to Mr Rahman working for the respondent and becoming her supervisor, there had been no issues with her employment. Ms Anastasiou also stated that people are jealous of her friendliness toward other people and again referred to Mr Rahman. Ms Anastasiou concluded by saying that Mr Rahman discriminated against her, targeted her and that if not for Mr Rahman, she would not have been dismissed.
[28] Ms Anastasiou relied solely on her evidence together with a reference provided by a Mr Dennis Lidis a tenant in the building which was dated 23 February 2015. Ms Anastasiou did not call any witnesses to support her case. Ms Anastasiou stated that she had obtained a job as a cleaner in a shopping centre but did not attend work as she was too stressed over her termination of employment.
Submissions of the Respondent
[29] On behalf of the respondent Ms Di Bello the respondent’s Human Resource Manager made submissions and gave evidence and called the respondent’s Area Manager Ms Ergin to give evidence about the applicant’s conduct at work.
[30] The respondent submitted that it had issued numerous verbal warnings and a written warning to Ms Anastasiou not to approach its clients and discuss workplace issues or to ‘harass staff on site’. Despite this, the applicant would continually approach the respondent’s client, namely Ms Steed.
[31] For example on 10 December 2014, the Area Manager Ms Ergin noted in an email 6 to the Operations Manager that she spoke to Ms Anastasiou the previous evening as she was creating a lot of issues on site not listening to the supervisor and simply doing her own thing. Ms Ergin listed a number of issues which were:
● “leaving mop mess on the carpet after mopping the bathroom floors and after the floor cleaner has cleaned
● leaving rubbish on the floor and not letting the supervisor know what floors she has rubbish on
● using aggressive words to other cleaners on site
● does not listen to anyone and is always threatening to take everyone to court
● she thinks all cleaners are lying and no one can clean well
● interfering with everyone’s job constantly complaining about others – she doesn’t like any of the cleaners or the supervisor complaining about other cleaners and her supervisor to our client”
[32] The email goes on to state that Ms Ergin had asked Ms Anastasiou to just do her job and not be concerned about other cleaners work or interfere with other cleaners. When asked whether she wished to be transferred to another building Ms Anastasiou declined saying that she wanted other staff and the supervisor to be transferred.
[33] On 17 February 2015, Ms Anastasiou was issued with a written warning 7 by Ms Di Bello regarding conduct on 17 February 2015 which stated the following:
“This is the first and final warning for not following your Supervisor’s instructions and for leaving work site early on Thursday 12 February 2015, Friday 13 February 2015 and Monday 16 February 2015, prior to 9.30pm. Consequently; you have also falsified your sign out times on these days and have logged that you have finished work at 10.00pm – we regard this as fraud and serious misconduct.
This warning follows numerous verbal warnings and a formal meeting at our head office on Thursday 5 February 2015 in which it was clearly explained that all leave and workplace issues must be addressed with your Supervisor and Manager and authorised in writing. At this meeting we also discussed your requirement to properly notify your Supervisor and/or Manager when you will not be able to work for any reason.
We remind you that you are not to leave work early without authority from your Supervisor and Manager and you are also required to notify your Supervisor and Manager as soon as possible if you unable to attend work for any reason- you must also advise of how long your expected period of leave will be. Authority must be obtained in writing for all leave and/or absences from your normal hours of work.
Additionally, you are not authorised to discuss workplace issues with our client at any time. Should you have any issues please contact your Supervisor, Manager, Operations manager, Head Office and/or your Union representative should you have any issues you which to discuss.
Repetition of this conduct will result in the termination of your employment.
This warning will be placed on your personnel file.
If you would like to discuss this matter further, please do not hesitate to contact the undersigned.
Yours sincerely
Claudia Di Bello
HR Manager”
[34] It was submitted that the applicant continued to approach clients of the respondent in the Bligh Street building to ‘coerce’ them to write references for her, as was exampled by the reference obtained from Mr Lidis on 23 February 2015 tended by the applicant.
[35] It was put to the applicant during her cross examination, that the respondent had received complaints from her colleagues regarding her work and in particular the respondent referred to a text message from another cleaner dated 25 February 2015 8 which states:
“Hi Sir. Sorry to bother u. (sic) Actually just letting u know that where I m working the other cleaner she Wants me to do each and everything even her job for example vacuuming and mopping isn’t my job but she is telling me to do that. For one day or two it would b alright but not daily. And she is also whinging a lot. She is all the time complaining about me that I m not good but I haven’t done any thing wrong.
Ketsarin (sic)”
[36] On 21 May 2015, Ms Steed; from Kingsmede (the client) sent an email to the Area Manager Ms Ergin advising that she had a serious problem with Ms Anastasiou and that her conduct was unacceptable. The email states:
“Hi Yildiz,
As per our discussion yesterday. I have a serious problem with one of the cleaners called Denise.
As you know previously she has raised a number of issues directly with us regarding the cleaning staff onsite and again this week she has over stepped the line completely by telling me that she does not like our new FM (Facilities Manager) onsite, this was done in the foyer of the building. I am sorry but this is just not acceptable; if she can so easily communicate with one of us who is to say that she is not doing the same with our tenants.
I really feel that she is not the best person for our site. She keeps on approaching various staff members in our office and I have told her on a number of occasions not to.
Can you please advise what the plan of action is to do this and how quickly it can be done. Her family has my contact number including my mobile phone so I would appreciate if you can relay to her not to make contact with me directly.
Thank you”
[37] A formal meeting was held on 25 May 2015, in Ryde and after this meeting Ms Steed advised the respondent that the applicant (following the meeting) went to the Bligh St building and demanded Ms Steed tell her what the problem was. Ms Steed subsequently advised the respondent that she feared for her safety and the safety of the tenants as there was no security on site. The respondent submits that based on Ms Anastasiou’s refusal to accept her behaviour as unacceptable, it had no choice but to terminate her.
[38] Ms Di Bello referred to the complaint email from Ms Steed of 21 May 2015 as being the final ‘straw’ which ultimately led to the dismissal of the applicant. This was put to Ms Anastasiou, who agreed that she had spoken to Ms Steed on a number of occasions but that Ms Steed only sent the email as she was ‘made’ to do so by the respondent.
[39] It was also submitted during cross examination that during Ms Anastasiou’s 5 year employment with B.I.C Services the applicant had requested on a number of occasions to relocate to another work site due to issues with her supervisors, which the respondent had complied with by agreeing to relocate her to another work site.
Witness Evidence of Claudia Di Bello
[40] Ms Di Bello stated that at the meeting of 25 May 2015 (the day of the termination) having taken place at 9:00am, Ms Anastasiou was offered a support person to be present (contrary to the applicant’s submissions), but the applicant declined stating that she was perfectly capable of understanding English and did not require any one to be there.
[41] Ms Di Bello also denies that she told the applicant to “shut up” during the meeting.
[42] Ms Anastasiou told her at the meeting that she did not think that anything was wrong with her approaching the clients of the building, and Ms Di Bello concluded at this point to terminate her due to the applicant not accepting this as unreasonable behaviour.
[43] With respect to the alleged behaviour of Ms Anastasiou’ s supervisor, Mr Rahman; Ms Di Bello states that Ms Anastasiou’s had a history of having issues with her past supervisors with the respondent having had to relocate her to another work site on a number of occasions.
Witness Evidence of Yildiz Ergin
[44] Ms Yildiz Ergin, Area Manager for the respondent provided a written statement, 9 gave oral evidence in support of the respondent’s case and was subject to cross examination from the applicant.
[45] Ms Ergin gave evidence that the applicant had been ‘difficult’ to manage during her employment and that she had constantly complained about her job and other colleagues. Ms Ergin stated she had issues with Ms Anastasiou every day. Ms Ergin stated that it had been put to Ms Anastasiou on many occasions not to approach the clients of the respondent. Ms Ergin further elaborated that a support person had been offered to the applicant at the meeting of 25 May 2015 but that the applicant had declined this offer.
Relevant Legislation
[46] Section 387 of the Act sets out the factors the Commission must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable:
(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.
(a) Whether there was a valid reason related to capacity or conduct for the dismissal
[48] There must be a valid reason for the dismissal of the applicant which is related to the applicant’s capacity or conduct. That is, the reason must be well founded and defensible.
[49] There is no question that the rising from the complaint of a senior representative of the respondent’s client that a valid reason for the termination of Ms Anastasiou existed. In addition to the complaint received, at the meeting to discuss the issue Ms Anastasiou admitted the conduct complained of and failed to acknowledge the seriousness and improper nature of her conduct.
[50] The respondent has given evidence demonstrating that previous verbal and a written warning had been provided. The written warning stated that a repetition of the conduct would result in her termination of employment.
[51] Despite this, the applicant again approached the respondent’s client; Ms Natasha Steed from Kingsmede which resulted in a complaint from Ms Steed to the respondent.
(b) Whether the person was notified of that reason
[52] The respondent has tendered evidence to demonstrate that Ms Anastasiou had been notified on many occasions of the specific behaviour that the respondent found unacceptable, and ultimately which lead to her dismissal.
[53] On 25 May 2015 Ms Anastasiou was notified in person of the complaint made against her.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct
[54] The written warning from the respondent to Ms Anastasiou of 17 February 2015 invited the applicant to further discuss any issues relating to the conduct outlined in the warning letter.
[55] A meeting was held between the respondent’s Human Resources Manager and Ms Anastasiou on 25 May 2015. The opportunity to respond to the complaint received from Kingsmede was given to Ms Anastasiou.
(d) Any unreasonable refusal to allow the person to have a support person present to assist at any discussions relating to dismissal
[56] The respondent, states that the applicant was offered to have a support person present at the meeting, Ms Anastasiou’s daughter was unavailable at the time, and she advised she wished the meeting to go ahead on the basis she did not require a support person. It was submitted by the respondent that the date of the meeting was chosen by the applicant.
(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
Ms Anastasiou had been given a number of verbal warnings, and a formal warning at a meeting on 5 February 2015, confirmed in writing on 17 February 2015.
(f) and (g) The size of the enterprise and human resource management capacity
[57] Ms Di Bello was the Human Resources Manager for the respondent; no issue arises from this consideration.
(h) Any other relevant matters
[58] Ms Anastasiou is the architect of their own demise; her demeanour in the witness box indicated a failure to appreciate the reasons for her termination and thus indicated that such conduct would continue into the future. She had been put on notice not to discuss work issues with tenants including the client Kingsmede, the warning fell on deaf ears. The complaint from the client of 21 May states that Ms Anastasiou continues to approach staff members in their office including criticising their own management the Facilities Manager.
[59] The employer was left with no other choice once the applicant’s response to the complaint included that she would continue to behave in the same manner. Ms Anastasiou was provided with pay in lieu of notice. There is no unfairness arising from the termination of the applicant’s employment
[60] The application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms Denies Anastasiou on her own behalf
Ms Claudia Di Bello, Human Resources Manager B.I.C Services Pty Ltd for the respondent
Hearing details:
Sydney
2015
5 November
1 Exhibit A1
2 Exhibit A2
3 Applicant’s submissions at 18
4 Ibid at 24
5 Ibid at 25
6 Exhibit R5
7 Exhibit R1
8 Appendix 5 of the respondent’s submissions
9 Exhibit R4
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