Diane Morris v O'Toole Electrical T/A Electrical Contractors Australia

[2016] FWC 1572

[2016] FWC 1572

FAIR WORK COMMISSION

DECISION

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

Diane Morris
v
O’Toole Electrical T/A Electrical Contractors Australia
(U2015/14255)

VICE PRESIDENT WATSON MELBOURNE, 16 MARCH 2016

Application for relief from unfair dismissal – Whether dismissal harsh, unjust or unreasonable – Whether valid reason relating to capacity or conduct – Fair Work Act 2009 – ss. 394 and 387.

[1] This decision is an amended version of a decision given on transcript on 2 March 2016 in relation to an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) by Dianne Morris in relation to the termination of her employment with O’Toole Electrical T/A Electrical Contractors Australia (ECA).

[2] It is alleged that the termination of Ms Morris’ employment was harsh, unjust and unreasonable. Evidence has been led in this matter through a number of witness statements. Those witness statements have been supplemented by oral evidence today. The witnesses have been subject to cross-examination.

[3] The first observation I would make in a general sense is that clearly the circumstances here do not represent a copybook employment relationship and nor do the circumstances represent a copybook termination of employment. Nevertheless the task that the Commission must undertake is to determine whether the dismissal was harsh, unjust or unreasonable, and the Commission must do so by reference to the factors set out in s.387 of the Act and the general provisions of the Act, including the objective of ensuring that there is a fair go all round in relation to the application of the unfair dismissal provisions.

[4] So I have regard to that general position and I have regard to the factors in s.387. The first factor is whether there was a valid reason for the dismissal relating to Ms Morris' capacity or conduct. The evidence before me establishes that there was a considerably fractious relationship between Ms Morris and Mr O'Toole, the director of the business. It was a complicated situation because of the family relationship between the two and the pressures of the business, including travel commitments and the working environment that existed at the Lilydale warehouse and office.

[5] The evidence establishes that there was a history of difficulties of a personal nature concerning the performance of duties. Communications between the two were not what would normally be expected of a functioning relationship between senior employees, and clearly the circumstances came to a head in October of last year when Mr O'Toole raised a matter not at a meeting, as he explained because of the attendance of another person, but through an email he sent to Ms Morris on 26 October. That email raised concerns about Ms Morris spending time during office hours at the neighbouring business conducted by EMA and the time that EMA employees spent in the offices of ECA.

[6] The response to that email is attached to the witness statement of Ms Morris and it clearly in my view raised the stakes regarding that matter and the entire role that Ms Morris was performing. In terms of the complaint that had been raised, the email response was dismissive of the significance of the matter. In terms of other matters, the email was very direct and defensive of the work that Ms Morris had performed and raised the issue of a departure from the organisation if Ms Morris' contribution was not going to be valued.

[7] In response to that there were two further emails from Mr O'Toole on 27 October. In the second of those emails Mr O'Toole raised three options that he identified in terms of reaching a landing in relation to the matters that had been the subject of communications. The expression of those options, arising as they did from the previous emails, really brought the whole circumstances to a head, not by way of discussions but through written communications that can be seen and evaluated. I think this reflects the fraught nature of the relationship and the deterioration of that relationship that had evolved in that time.

[8] Ms Morris' response was to favour the option of an exit strategy. So it was clear when that response was given early on 28 October that there was basic agreement that the employment relationship would come to an end and that was the preferred option of both of the parties. In my view, that context is highly relevant to the consideration of this application because while the email communications did not amount to a dismissal as such or a resignation as such, they clearly represented a meeting of the minds that the employment relationship should come to an end.

[9] It was the following day after receiving a text message from Mr Featherstone that Mr O'Toole communicated to Ms Morris that her employment was terminated with immediate effect. The evidence before the Commission indicates that there was significant dissatisfaction not only with the work performed by Ms Morris but also with her dealings with Mr O'Toole, her superior in the business, and the relationships with others. Mr O'Toole also attaches considerable importance to what he regarded as a dishonest answer to the allegation about work performed for the business next door, EMA.

[10] I think it is appropriate that I have regard to all of that context and the nature of the relationships, the personal connection, and the deterioration of the dealings between them in assessing whether there was a valid reason. In all of the circumstances I am satisfied that there was a valid reason for termination of Ms Morris' employment relating to her capacity and conduct.

[11] The next factor that I consider is whether Ms Morris was notified of the reason and the related factor of whether she was given an opportunity to respond to the reason relating to capacity and conduct. The reasons, as I have found, are quite broad and arise from an overall breakdown of the employment relationship. Therefore, it could be said that the email communications represent some engagement on the issues.

[12] However, the circumstances do not represent a classic or clear process of advising an employee of a reason for termination and giving an opportunity to respond before taking a final decision. I am unable to find in the circumstances that Ms Morris was notified of the reason as such, nor given an opportunity in a conventional manner to respond to the reason relating to her capacity and conduct. I do recognise, however, the communications between them and the relevance of those communications to those factors. But in my view they did not amount to a notification of the reason and an opportunity to respond.

[13] The next factor is related to discussions relating to dismissal which really did not occur, so it is not of great significance. So I do not attach a considerable importance to the factor in s. 387(d).

[14] The next factor is if the dismissal related to unsatisfactory performance, whether the person had been warned about that unsatisfactory performance before the dismissal. In one sense I think the dismissal did relate to unsatisfactory performance, but it would be wrong to characterise it as a termination solely on that ground. Insofar as it is relevant there appears to have been a lack of proper procedure in relation to counselling, the identification of difficulties in the performance of duties, including the interaction with other employees. An opportunity to respond to those matters, as would be expected in a copybook termination procedure on performance grounds, was not given.

[15] The next factors I am required to have regard to are related. They are the size of the employer's enterprise, the impact on procedures, and the degree to which the absence of dedicated human resource management specialists impact on the procedures followed in effecting the dismissal. I have regard to the circumstances of the employer. Mr O'Toole runs the business.  It is focussed on work offsite and he is regularly away from the business. It is a business that has had considerable difficulty, financial difficulty and work pressures.

[16] There are no dedicated human resource management specialists in the business and there is also the tension that existed in the family sense that made it difficult, as Mr O'Toole explained, in dealing with Ms Morris in a detached manner as might be expected in a normal employment situation. To an extent I think those factors modify the criticisms that can legitimately be made about the lack of proper procedures adopted in effecting the termination.

[17] I am also required to have regard to any other matters that I consider are relevant. The parties have raised a number of those matters in the submissions before me. I have regard to all of the circumstances. I have regard to the text message from Mr Featherstone that appeared to bring the somewhat tense situation and the employment relationship to a complete halt, and it does appear to me that Mr O'Toole overreacted at that stage when receiving that text message. It appears that he assumed that Ms Morris had been speaking to Mr Featherstone about the circumstances.

[18] He also assumed that the text message was sent with some knowledge or support from Ms Morris. It appears the first of those assumptions was correct, but the second and any other assumptions he made at the time, were incorrect. I have regard to those circumstances. I also have regard to the circumstances of implementing summary dismissal at that time when there may have been other alternative approaches to an employer to effectively have immediate discussions, bring forward the discussions on an agreed exit and endeavour to reach agreement on the termination details.

[19] Mr O'Toole explained in his evidence his level of frustration and that the text message represented to him the last straw, or the tip of the iceberg. It certainly appeared to tip him over the edge to make the decision that he did, and I think it is relevant that his decision was based on the entire circumstances, including his very strong view that Ms Morris had been dishonest with him in her response to him regarding the work performed for EMA. He was in the situation where he had one account given by his project manager and quite a different account given by Ms Morris.

[20] So, I have regard to all of those circumstances and I must determine whether the dismissal was harsh, unjust or unreasonable. The dismissal was for a valid reason, precipitated by Mr Featherstone’s text message. The procedures adopted in effecting the dismissal were not appropriate. Although I have some considerable difficulty in this case, I have come to the view on balance that the dismissal was not harsh. Nor was it unjust or unreasonable. In the light of those findings I dismiss the application.

VICE PRESIDENT

Appearances:

Mr A. Jewell on behalf of Ms Morris.

Ms S. Bingham of counsel on behalf of ECA

Hearing details:

2016.

Melbourne.

March 2.

Final written submissions:

Ms Morris on 20 January 2016.

ECA on 17 February 2016.

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