Emily Robinson v Your Way Support Services Pty Ltd
[2021] FWC 3418
•18 JUNE 2021
| [2021] FWC 3418 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Emily Robinson
v
Your Way Support Services Pty Ltd
(U2021/1454)
COMMISSIONER SIMPSON | BRISBANE, 18 JUNE 2021 |
Application for an unfair dismissal remedy – Summary dismissal - No valid reason for dismissal - Steps leading to dismissal procedurally flawed – Dismissal unfair – Applicant does not seek reinstatement – Compensation ordered.
[1] On 22 February 2021, Ms Emily Robinson made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been unfairly dismissed by her employer, Your Way Support Services Pty Ltd (the Respondent).
[2] The matter was listed for a conciliation before a Commission Conciliator on 10 March 2021 but did not settle. The matter was then allocated to me and I listed the matter for a Directions Hearing on 18 March 2021. The matter was set for a substantive hearing on 20 and 21 April 2021.
[3] At the Hearing, Ms Robinson was represented by Mr Corey Dyer, CEO of Patcor HR and Business Consultants, and the Respondent was represented by Mr David Wilkinson, General Manager of Your Way Support Services Pty Ltd. Leave was granted for Ms Robinson to be represented. The Applicant parties appeared in person, while the Respondent parties appeared by video via Microsoft Teams.
[4] In written submissions filed before the hearing the Respondent sought that the matter be summarily dismissed and that the Commission award costs. I ruled against the application that the matter be summarily dismissed for reasons given in transcript at the commencement of the hearing, and also advised that the costs application would not be considered before determination of the substantive application.
[5] Initially it was agreed that Ms Robinson’s witnesses would present their case first followed by the Respondent’s witnesses. However, after the commencement of Ms Robinson’s evidence I determined that it would be more efficient that Mr Wilkinson and Ms Robinson give their evidence at the same time given the manner in which material had been put before the Commission and that the Respondent being self-represented was not familiar with cross examination of a witness. The matter proceeded as a determinative conference.
[6] There were four Form 51 applications filed by Ms Robinson for orders that Mr Wilkinson, Ms Sorby, Ms McCarthy and Ms Griffin attend to give evidence. Mr Wilkinson, Ms Sorby and Ms McCarthy appeared as witnesses for the Respondent and therefore the applications for orders were not required. Ms Griffin had started other employment. I advised the parties I would reserve my view as to whether it was necessary to issue the order concerning Ms Griffin subject to how other evidence proceeded. I ultimately concluded it was unnecessary to issue an order requiring Ms Griffin to attend as my conclusion in regard to the matters on which Ms Griffin was to give evidence were not significant in the ultimate determination of the matter.
[7] Ms Robinson adopted the submissions filed on her behalf on 30 March 2021 made up of 66 paragraphs with attachments A to L as evidence, 1 and a witness statement of 18 paragraphs filed on 17 April 2021.2 There was also a second written submission filed for the Applicant of 64 paragraphs filed on 17 April. Ms Robinson also adopted contents of the second submission as evidence.3 Ms Mikila Cook, who is the sister of Ms Robinson provided a witness statement dated 30 March 2021 which was admitted into evidence uncontested.4
[8] The Respondent relied on its written submissions filed on 13 April 2021 of 224 paragraphs with attachments A to S, and also further attachments T to W filed on 19 April 2021. Mr Wilkinson adopted the submission as his evidence. 5 Ms Sorby and Ms McCarthy did not file statements as such but affirmed as accurate emails they had sent to their employer concerning particular facts in issue as accurate.
BACKGROUND
[9] Ms Robinson was employed by the Respondent on 4 February 2020 until her termination of employment on 10 February 2021. On 26 August 2020, Ms Robinson signed an employment contract to begin a new role as a Member Concierge. However, began this role on 17 August 2020.
[10] Ms Robinson was engaged on a full-time contract, earning $56,000.00 per annum, with the normal business hours being Monday to Friday 9:00am until 5:00pm.
EVIDENCE
[11] Mr Wilkinson disputed a range of facts as put for Ms Robinson but said he generally agreed with the timeline of events as provided as attachment L to the Applicant’s submissions as being accurate.
Informal discussion September 2020
[12] Mr Wilkinson put to Ms Robinson that issues concerning dress code, personal phone calls and disclosing personal information about relationships were raised with her in September 2020. Ms Robinson said that this was a discussion and was not a disciplinary meeting, but the Respondent just wanted to bring these issues to her attention. Ms Robinson said that she took on board the feedback and she understood there was no further issue.
Period leading up to disciplinary meeting in December
[13] Mr Wilkinson said that leading up to a disciplinary meeting in December 2020 Ms Robinson had asked Ms Mitchell in early December for help with Christmas scheduling, a task he said that was apparently behind schedule and that Ms Robinson needed to block out time to complete the task. Mr Wilkinson said this was a one-person task and Ms Robinson had commenced it on 11 November. Mr Wilkinson said Ms Mitchell told Ms Robinson to let her know when Ms Robinson wanted to do the Christmas scheduling and Ms Mitchell would organise staff to support her. Mr Wilkinson said Ms Robinson also had a conversation with him on 8 December about needing help and he had said the same as Ms Mitchell.
15 December 2020
[14] Mr Wilkinson said that on 15 December Ms Mitchell advised him that Ms Robinson had ignored instructions and had on two occasions delegated duties to other staff, and that Ms Mitchell had issued Ms Robinson with a request to attend a disciplinary meeting the next day. The letter included the following:
“It is alleged that on an ongoing basis and most recently on the 10th and 11th of December that you failed to follow management direction. Specifically it is alleged that you had delegated the scheduling phone to our receptionist without prior consent asking her to compete the main component of your role whilst you worked on other tasks. On the 14th delegating tasks to the receptionist without Management approval – which you know to do. This is a breach of company policy to do as reasonably requested by your employer. Such conduct has the potential to impact the productivity and planning in the workplace.
If proven, this misconduct may result in a written warning, a final written warning or the termination of your employment.”
[15] On 15 December 2020 Ms Robinson sent the following correspondence to the Respondent:
“15/12/20
To Whom it may concern,
Thank you for raising your concerns about these allegations. There are a few things I would like to address. I would like to ask where these supposed allegations have come from?
I have never delegated tasks to reception. On the 10th and 11th I asked if reception had compacity to assist me with the answering of my phone and monitoring if I had any urgent emails come through.
Natasha indicated that she was quiet and more then willing to assist. I had previously raised the idea of using Natasha to assist before. As Amy was not in the office to ask, I thought it would be ok for Natasha to help monitor phones (as she is reception) while I complete the URGENT Christmas supports schedule. Prior to Natasha taking the phone/ watching the email I ensured the morning was set up and there were limited outstanding tasks.
On the 14th again I simply asked if Natasha was busy or if she had time to help create a spread sheet around km's. I told Natasha what I was thinking. Natasha indicated that she was actually bored and would love to be given something to do. Natasha suggested she approved KM's as she was already there approving notes so I could keep focusing on shift fills. I said that would be amazing if she had compacity, however I would check after the spread sheet was made if that was allowed. The day got busy and I had not gotten to confirming the idea with management.
Prior to asking Natasha for assistance, I had asked for help on multiple occasions including at our recruitment meeting, Amy and David both were asked directly for help also. David advised me he could see the importance of getting the schedule sorted and offered to help. A time was never arranged for this. As there has previously been an email about Natasha being able to assist when needed, I thought asking for help would be acceptable.
I have been working consistently on fills for the Members. The week I went back into scheduling we had 5 staff resign alone. Then had more staff pulled off Member's schedule. I have been re working roster to ensure all our Members are supported to the best of our ability. Unfortunately, with all the resignations and emergency fills I have been unable to complete EXTRA weeks on top of my usual work load.
This company currently has the need for 3 Member concierges, 2 Member Engagement Officers(Manger), 2 Recruitment and 2 Managers. There is one scheduler. Often the emails get very busy with requests and changes. While I work hard and always do my best to keep our members supported, sometimes assistance may be need when more than the usual work load is required. And I was not listened to when I asked for help. Meaning I took initiative to ask for help AGAIN to ensure the schedules will done on time.
I am also concerned to see how Jeddiah Weston can get away with misconduct, black mail and verbal abuse to our office staff without a warning. Yet asking for help has landed me into a disciplinary meeting
Many thanks, Emily
[original text kept]
Disciplinary Meeting 16 December 2020
[16] On 16 December 2020, Ms Robinson attended the disciplinary meeting held by the Respondent regarding Ms Robinson delegating work to colleagues without managerial consent.
[17] Ms Robinson said that during this meeting she expressed that she felt that her requests for help were ignored and that the outcome had been decided prior to the meeting commencing.
[18] Mr Wilkinson said he attended the meeting convened by Ms Mitchell as an observer and Ms Robinson attended with her sister Mikila as a support person. Mr Wilkinson said it was a difficult meeting as when Ms Mitchell asked Ms Robinson why she had not followed instructions and had delegated without authority Ms Robinson refused to admit that she had delegated and said that she had not delegated but had ‘asked’ for help.
[19] Mr Wilkinson said it reminded him of a similar situation on 4 November when Ms Robinson had thrown a phone and slammed a door, and Ms Robinson said she had not ‘thrown’ the phone, she had ‘tossed’ it, and she did not intend to ‘slam’ the door and the door had swung open quicker than she meant. Mr Wilkinson claimed when Ms Mitchell tried to again raise the issue of delegating, Ms Robinson became emotional and started to raise her voice and introduce issues not relevant to the meeting, for example complaining about a support worker. Mr Wilkinson said Ms Mitchell had to ask Ms Robinson to lower her voice, and Ms Robinson had a history of asking other people to do tasks for her when she had no authority to do so, and she had previously been told that she needed to get her manager or supervisor to arrange assistance.
[20] Mr Wilkinson said at the end of the meeting Ms Mitchell asked Ms Robinson if she was okay to go back to work and Ms Robinson said not really and she would like to go home and then left with her sister.
Written Warning 17 December 2020
[21] On 17 December 2020, the day after the disciplinary meeting, Ms Robinson was issued with a Written Warning. This read:
“Dear Emily
Confirmation of Written Warning
We refer to our letter concerning an allegation of misconduct dated 15th December 2020.
A subsequent disciplinary meeting was convened on 16th December 2020, for the purposes of allowing you an opportunity to respond to the allegation of misconduct.
The allegation, together with our findings, is noted following:
It is alleged that on an ongoing basis and most recently on the 10th and 11th, of December you failed to follow management direction. Specifically, it is alleged that you had giving the scheduling phone to our receptionist without prior consent asking her to complete the main component of your role whilst you worked on other tasks. This is in breach of the company policy to do as reasonably requested by your employer. Such conduct has the potential to impact the productivity and planning in the workplace.
You responded that you had given the phone to Natasha as you needed to catch up on your emails. You noted that you were feeling overwhelmed and under supported within your role. It was discussed that you have been approached to arrange a list of tasks that you need assistance with so a plan can be formulated to assist you. You also responded that you were not aware that you needed to seek approval to give work to the receptionist and you were merely just providing her things to do. You stated that you do not agree with the allegation.
Having regard to the above, and in the present circumstances you are hereby issued with a formal written warning that your conduct outlined above is unacceptable.
A copy of this letter will be placed on your personnel file together with the relevant findings of the investigation.
You are reminded that any further misconduct may result in more serious disciplinary action, up to and including termination of your employment.
This warning and all matters relating to the process remain confidential and you are directed not to discuss them with any other person without my express prior approval Any failure by you to maintain confidentiality may lead to disciplinary action.
If you have any enquiries in relation to this matter, please contact me on [redacted]
Yours sincerely
Amy Mitchell”
[22] Ms Robinson’s evidence was that she felt this warning was issued in haste and failed to take into account the points she raised in the meeting.
[23] Ms Robinson submitted that as a matter of procedural fairness, the issuing of the written warning on 17 December 2020 should have reasonably concluded any or all disciplinary action against her for the points raised in the written warning thereafter, and that it was therefore not procedurally fair for the Respondent to go on and terminate her after the written warning was issued, in the absence of any further action being brought against her by the Respondent.
[24] Ms Robinson gave further oral evidence concerning why she felt the warning should not have been issued. Ms Robinson said she had previously raised that Natasha Griffin was helping her during meetings where Mr Wilkinson was present, and he had not said anything. Ms Robinson said she had spoken to Mr Wilkinson and Ms Mitchell about getting help with the Christmas schedules and getting Natasha Griffin to help by monitoring emails. Ms Robinson also said her workload had increased because a number of support workers had resigned and Ms Robinson said she was handling more than her usual workload.
[25] Ms Robinson said there had been no objections to her receiving the help. Ms Robinson said when it was really quiet Ms Griffin had offered to take the phone and monitor it and Ms Robinson said she was not aware that Ms Griffin monitoring Ms Robinson’s mobile phone would be outside her duties as Ms Griffin was a receptionist. Ms Robinson said she was trying to use her initiative to get the flow of business moving and claimed she said at the meeting she was sorry but she felt Ms Mitchell was dismissing what she was saying and had already predetermined the issue.
[26] Mr Wilkinson said Ms Robinson was spoken to by himself and Ms Mitchell and there had been previous circumstances where Ms Robinson was spoken to about delegating to staff. Mr Wilkinson said the problem with what Ms Robinson said at the disciplinary meeting was that she said she did not delegate, she asked. He said Ms Robinson did not seem to understand she needed to have the authority to delegate the work.
[27] Mr Wilkinson said that Ms Robinson had put in her submission that Ms Mitchell was not present to ask, however on a later occasion said the time slipped away, so therefore Ms Robinson did understand she needed permission to delegate, however at the disciplinary meeting she took a contradictory position that she was asking. Mr Wilkinson said there seemed to be a misunderstanding about delegation. Mr Wilkinson said that the receptionist’s role is to answer the office phone, not everyone’s phone.
[28] Ms Robinson said she sent her written response prior to the issue of the written warning including that she did not know she had to ask permission to seek Ms Griffin’s help and was under the impression it was acceptable for Ms Griffin to help her when she was free.
[29] Mr Wilkinson said Ms Mitchell spoke to Employsure about this issue and the simple matter was that Ms Robinson had been told not to delegate, and it was put to her at the meeting, why did she delegate? Mr Wilkinson said everything else is deflection from the reason for the meeting.
[30] Mr Wilkinson said after the meeting Ms Robinson was given the written warning and rather than accepting that Ms Robinson wished to challenge that.
[31] It was put to Mr Wilkinson that the disciplinary process did not provide Ms Robinson an opportunity to respond to the issues that led to the warning. Mr Wilkinson accepted the issue of an alleged aggressive phone call was not raised as part of the warning however referred to page 6 of attachment V, an Employee Status Report from December 2020 where Ms Holder reported on a conversation where Ms Robinson had been aggressive.
21 December 2020 response to warning
[32] On 21 December Ms Robinson sent email correspondence to Ms Mitchell in response to the written warning as follows:
“Hi Amy,
Thank you for your email.
I acknowledge your request for me to seek approval prior to asking for help from reception and agree to follow the request moving forward. However, I do not agree you have represented my true responses in this 'written warning'. You should already have a copy of this letter that I sent from the scheduling email address, however I have attached it again.
Firstly, I did not state 'I gave Natasha my phone as I needed to catch up on emails'. My emails were caught up prior to asking for help. I asked Natasha if she could assist me by monitoring my phone and emails for urgent matters while I completed urgent Christmas schedules. As I had asked for help with this from Management previously, I did not realise it would be a problem.
Secondly, I only stated I didn't realise I needed permission to ask reception to monitor my phone as their main duty was to answer phones. I did not state that 'I was merely just giving her things to do.' I was asking for help so I could complete Christmas schedules and an additional 3 weeks of schedules. Meaning I was required to do more than my usual workload.
Thirdly, I do not have any recollection, prior to our meeting on the 16/12, of being asked to provide a list of tasks that I needed help with. I asked for help from Management and do not have recollection of being told to follow Management up for help. Please review my response. I would appreciate if your wording of 'my response' could be removed from this warning as it does not accurately reflect my actual response. Please acknowledge you have received this email. Please feel free to communicate further, via email, should you have any questions.
Yours sincerely, Emily Robinson”
[33] Mr Wilkinson said Ms Robinson’s response was discussed with the Respondent’s advisors and the conclusion was that they mirrored the difficulty the Respondent was encountering during the meeting, in that the issues raised were irrelevant to the issue of the disciplinary meeting, and stopped short of Ms Robinson understanding that prior to the disciplinary meeting she had been told on ‘many occasions’ that she did not have the authority to delegate, but she simply acknowledges the request and agrees to follow it from now on.
Last attendance at Work on 23 December 2020 and raising of “Without Prejudice Meeting”
[34] Ms Robinson submitted that her last day physically attending work for the Respondent was on 23 December 2020.
[35] Prior to leaving the office on 23 December, Ms Robinson said that Mr Wilkinson provided her with a handwritten ‘post it’ note containing the words ‘Without Prejudice Meeting’ and told her she should go away over the break and Google it, because they would be having one when she got back from the break.
[36] It was put to Mr Wilkinson that the warning was the end of the disciplinary process. Mr Wilkinson said the process was not finished because Ms Robinson was complaining about it. Mr Wilkinson said the process continued because Ms Robinson complained about the warning. Mr Wilkinson accepted the warning was about the delegation issue. Ms Robinson said her response to the warning acknowledged the need to request management permission prior to asking for help, and the only thing she requested was that her response be removed as described in the warning because she did not believe it accurately reflected her response.
[37] Mr Wilkinson was asked if the meeting was recorded as the warning letter quotes her and she disputes the version. Mr Wilkinson said Ms Mitchell ran the meeting. It was put to Mr Wilkinson that if Ms Robinson did not understand something it could be explained to her rather than being necessary to give her a warning about it. Mr Wilkinson said it had been dealt with earlier and somehow was not understood.
[38] It was put to Mr Wilkinson that he gave Ms Robinson a note referring to a without prejudice meeting, only two days after Ms Robinson had sent her response to the warning letter. Mr Wilkinson said there had also been the issue of an aggressive phone call in relation to Ms Michelle Holder and he advised Ms Robinson he would step aside and get someone else to investigate it.
[39] Mr Wilkinson clarified in his oral evidence that the reason for an ongoing disciplinary process from 23 December was about the aggressive phone call with Ms Holder. Mr Wilkinson said Ms Mitchell had been speaking to Employsure about Ms Robinson’s response of 21 December, to the warning issued to her on 17 December 2020.
[40] Ms Robinson said in her oral evidence it was Ms Holder that had abused her. Ms Robinson said an alleged aggressive phone call with Ms Holder was not raised with her on either 21, 22 or 23 December. Mr Wilkinson said the alleged aggressive phone call in December was raised in Ms Robinson’s grievance (lodged on 15 January at the invitation of the Respondent).
[41] Mr Wilkinson said as at 23 December he did not have the details of the alleged conversation between Ms Robinson and Ms Holder where Ms Robinson was claimed to have been aggressive, however he said it was raised with Ms Robinson that day. Ms Robinson gave evidence she did not think that the issue was raised with her on 23 December and she was never asked what her side of the story was. Ms Robinson said there were two people standing next to her during the conversation with Ms Holder where it was alleged she was aggressive.
[42] Mr Wilkinson referred to attachment K to the Respondent’s submissions which is an email sent to Ms Robinson on Monday 11 January 2021 to support his claim that he did raise with Ms Robinson the discussion with Ms Holder in the course of their conversation on 23 December. Ms Robinson gave evidence in response to the effect that if the issue was raised and she did not remember it she apologised, appearing to concede it was possible that it may have been raised but that she did not remember. Ms Robinson said the conversation was rushed and she was packing up and it was stressful for her at the time.
[43] The evidence tends to indicate it is likely the issue of the alleged aggressive conversation between Ms Robinson and Ms Holder may have been raised by Mr Wilkinson with Ms Robinson on 23 December however on Mr Wilkinson’s own evidence he did not have the details of the alleged conversation at the time, and it would seem from the evidence overall Ms Robinson was never given an opportunity to respond to any specific allegation about this alleged conversation with Ms Holder before her termination.
Alleged changing of Applicant’s password on 23 December 2020
[44] Ms Robinson’s evidence was that Ms Griffin messaged her later in afternoon of the 23 December 2020 asking what the new password was to her work emails, as the password had been changed.
[45] It was Ms Robinson’s evidence that she did not change the password, and on that basis, the only logical conclusion that could be made was that the Respondent had already cut her network access off after she left the building on 23 December 2020.
[46] Ms Robinson said she did not change the password. Ms Robinson said the only reason she knew it changed was that Ms Griffin was going to be On Call over Christmas and she received a message from Ms Griffin asking her if the password had been changed.
[47] It was put to Mr Wilkinson that on the balance of probability the changing of the access password indicates that the Respondent intended to dismiss Ms Robinson. Mr Wilkinson said there is a simple explanation. He said the email account is not exclusive to Ms Robinson as it was a shared inbox also used by Ms Griffin and Ms Sorby, and as of Christmas the Respondent was shutting down the office for an extended time and the scheduling was being taken over for the that time by ‘On Call’ and there would be no one dealing with that email address. Mr Wilkinson said the email address is shut down for the period the office is shut. Mr Wilkinson said Ms Mitchell made these changes as the office shut from 12 midday on 23 December 2020.
[48] Mr Wilkinson said staff are paid to monitor the contact emails during ‘On Call’ and emails were redirected for that time. Ms Robinson queried whether everyone’s email was changed and whether the scheduling list was monitored during ‘On Call’.
[49] It was also raised by the Applicant as to why new passwords were not issued, and why Ms Griffin wouldn’t have a new password as she would need to access the system. Mr Wilkinson said no one was accessing the scheduling emails over the Christmas break, and it was ‘On Call’ that was monitoring the emails.
[50] Having considered the evidence, I am not satisfied it has been established that Ms Robinson’s password was specifically changed to exclude her from accessing the system from 23 December and given the explanation given from Mr Wilkinson it is more likely the system was changed by Ms Mitchell for the reason given, impacting password access generally during the shutdown period, and was not specifically directed at Ms Robinson.
[51] It seemed to be an agreed fact that Ms Robinson was taking several weeks annual leave from 23 December 2020.
Alleged scheduling errors
[52] Mr Wilkinson said between 4 January and 8 January 2021 the Respondent discovered Ms Robinson had made various scheduling errors in her Christmas scheduling that cost the company money but said they could not be raised this with Ms Robinson as she was on Annual Leave.
Phone call on 8 January 2021 between Ms Robinson and Ms McCarthy
[53] Ms Robinson’s evidence was that on Friday 8 January 2021, it was announced that Brisbane would be going into a three-day lock down up to and including Monday 11 January 2021, and as she was due to be returning from annual leave on Monday 11 January 2021, Ms Robinson said she wanted to enquire what this meant for her return and if she would be in the office or working from home.
[54] Ms Robinson said that at approximately 10:30am on 8 January 2021, she was in the car with her sister when she decided to make a call to the workplace regarding the lockdown and this call was answered by Ms Liani McCarthy. Ms Robinson said she asked to speak to Ms Mitchell but was told she was in a meeting so was unavailable. She said that she then requested that Ms Mitchell call her back when available, as she was wanting to find out what was happening with the lockdown.
[55] Ms Robinson’s evidence was that Ms McCarthy said that the office would be closed, and they would be working from home. Ms Robinson said that she tried to be proactive about the possibility of working from home, so she asked Ms McCarthy who would be “On Call” for the weekend and advised she could go pick up the scheduling mobile to work from home.
[56] Ms Robinson submitted that Ms McCarthy advised that Ms Monique Sorby would be on call, but Ms Griffin would have the phone on Monday and therefore, Ms McCarthy did not think Ms Robinson was required to work.
[57] Ms Robinson expressed that she was a little shocked by this because of other events happening with her work before the Christmas break. Ms Robinson said she then asked Ms McCarthy why as the Scheduling Officer she was not required to work and why Ms Griffin, as a receptionist, would be performing her duties as she was due to return to work Monday.
[58] Ms Robinson said that Ms McCarthy advised her she didn’t know and that it is just what Ms Mitchell said and that she would have to call her back when she is done in her meeting. Ms Robinson said that she then said “Okay no worries. Thanks for letting me know. Can you please get Amy to call me when she is available? I am free all day to take her call. Talk soon.”
[59] Ms Robinson said that to her understanding, they both ended the phone call mutually and she did not get any sort of impression that the phone call was unpleasant or hurried in its ending. She said that she never raised her voice or spoke rudely in the conversation as per the claim.
[60] Ms Robinson’s evidence was that after this phone call, she was never called back by Ms Mitchell to discuss the matter further as requested. She said she simply received a text advising her that ‘Office will be closed on Monday class it as a long weekend see you Tuesday.’
[61] Ms Robinson submitted that when she asked if she was required to work from home, she was advised ‘Monique is on call she will have the phone. All sorted for Monday’.
[62] Ms Robinson’s sister Ms Cook’s unchallenged evidence was that on the morning of 8 January at approximately 10.30am she was being driven as a passenger in Ms Robinsons vehicle at the time of the phone call. Ms Cook said as the phone call was on a car Bluetooth device she was able to hear the conversation. Ms Cook said during the conversation she could hear a representative of the Respondent advise Ms Robinson that;
a) She had been advised to inform Ms Robinson that she would not be required to appear at work the following Monday, 11 January and;
b) The tasks that Ms Robinson would normally do had been delegated on to another person at the Respondent, and this was the reason she was not required to come to work the following Monday.
[63] Ms Cook said Ms Robinson appeared quite shocked, before asking to speak to “Amy” to call her back and explain why she was suddenly not required and why tasks that would normally be hers were being given to someone else.
[64] Mr Wilkinson’s evidence was that they were later advised on the same day, that Ms Robinson had called the office to talk to Ms Mitchell to see what she needed to do on her return to work from annual leave the following Monday, but Ms Robinson had become aggressive and angry when told that Ms Mitchell was in a meeting and would ring her back. The Respondent said that Ms Mitchell was preoccupied with getting the office and staff organised for the lockdown that was to start at 5:00 pm.
[65] Ms Sorby gave evidence concerning the contents of an email she sent to Ms Mitchell on 14 January 2021 about a conversation she said she overheard between Ms Robinson and Ms Liana McCarthy. Ms Sorby said she heard the conversation from Ms McCarthy’s end and accepted that she could not hear Ms Robinson herself. Ms Sorby’s evidence was that Ms McCarthy said that she was not sure what was happening and Ms Mitchell was in a meeting and would have to call Ms Robinson back. Ms Sorby’s evidence was that Ms McCarthy told her that Ms Robinson had said that “I’m the Scheduling Officer, not Natasha she’s just the Receptionist I need to know what’s going on now.”
[66] Ms Liani McCarthy gave evidence about an email she sent to Ms Mitchell on 13 January regarding the phone conversation between Ms Robinson and herself on 8 January 2021. Ms McCarthy affirmed the email as true and correct. Ms McCarthy said Ms Robinson called through to the office to speak with Ms Mitchell about returning to work on 11 January after she had heard about the lock down.
[67] Ms McCarthy said Ms Mitchell was walking into the training room for a meeting and so she told Ms Robinson that Ms Mitchell would call her later or Ms Robinson could contact her later. Ms McCarthy said in the email Ms Robinson “brushed her off” and said she needed to speak to Ms Mitchell. Ms McCarthy said during this time Ms Natasha Griffin told her that she thinks Ms Robinson did not need to come in on Monday and Ms Mitchell had said Ms Sorby or Ms Griffin will be handling scheduling on Monday, but to confirm with Ms Mitchell.
[68] Ms McCarthy said in the email that she told Ms Robinson not to come in Monday and she believed the plan was for her to come in on Tuesday and not to worry about Monday as its likely they will be working from home.
[69] Ms McCarthy said Ms Robinson’s tone changed and she said “Umm I am off leave on Monday”. Ms McCarthy said in the email that she told Ms Robinson not to stress about it and they are trying to work out logistics now.
[70] Ms McCarthy said that Ms Robinson snapped at her in an aggressive and reactive tone “Well who is going to do on call? Ms McCarthy said she replied “Monique and Tash are going to handle it”. Ms McCarthy said Ms Robinson then said in an angry tone “I am the scheduling officer and I am on leave on Monday, Natasha is just a receptionist”. Ms McCarthy said she reiterated that Ms Robinson could confirm everything with Ms Mitchell once the meeting was over.
[71] It was put to Ms McCarthy that the context (of the phone call) included earlier discussions between Ms Robinson and Mr Wilkinson about her ongoing employment and this may have been the reason for Ms Robinson being confused or worried that her job was in jeopardy. Ms McCarthy did not accept that. Ms McCarthy said she did not know about the background context involving Ms Robinsons employment. Ms McCarthy was not sure whether Ms Robinson was angry at her or the situation. Ms McCarthy described Ms Robinson as being abrupt.
[72] Ms McCarthy said Ms Robinson continued to question her about why she was not able to pick up the phone from Monique and why Natasha was asked to do her job. Ms McCarthy said she ended the conversation by saying “This was the directive given by Amy, take it up with her” and hung up the phone. Ms McCarthy said she reported the conversation to Ms Mitchell to explain Ms Robinson’s frustration and also to warn Ms Mitchell that she had hung up on Ms Robinson.
[73] The Respondent submitted that Ms Robinson’s conduct during that phone conversation required her colleague, Ms McCarthy to terminate the phone call due to Ms Robinson’s aggressive and angry behaviour on the phone.
[74] The evidence submitted by the Respondent noted that the concerning difference with the nature of this aggressive phone call by Ms Robinson was that she was now making offensive remarks about her co-workers (describing Ms Griffin as ‘just a receptionist’) and that it was an external call and not part of an internal office call to facilitate a meeting with her manager.
[75] It was put to Mr Wilkinson that Ms Robinson was not told before 8 January that she wouldn’t be required. Mr Wilkinson said the lock down was announced on the Friday morning and prior to that Ms Robinson had been on annual leave and had intended to be on leave for three weeks however indicated she may wish to come back earlier.
[76] No one was aware that there would be a lock down on the Thursday 7 January 2021. It was submitted for Ms Robinson that she was not angry or aggressive but more puzzled and confused about what was happening.
[77] The evidence overall paints a picture of Ms Robinson most likely being abrupt with Ms McCarthy, however it does not suggest Ms Robinson was highly agitated or highly offensive. It is understandable that Ms Robinson may have been wary about the reason she was being told she was not required given the context of her earlier interactions with Mr Wilkinson in December 2020, including the flagging of without prejudice discussions with the Respondent. The evidence falls short of the conduct of Ms Robinson in the course of the phone conversation with Ms McCarthy founding a valid reason for termination of itself, either taken by itself or in addition to the substance of the earlier warning.
[78] The facts however do not point to a deliberate intention to attempt to exclude Ms Robinson from the workplace on 11 January for some ulterior reason. It seems more likely that the decision to have other staff monitor the scheduling phone over the weekend and on Monday in circumstances where a COVID-19 lock down had been declared, and Ms Robinson had been on leave was related to the particular circumstances surrounding the lockdown. This is supported by the evidence of the text message from Ms Mitchell to Ms Robinson which indicated Ms Mitchell expected Ms Robinson to be at work on Tuesday 12 January.
Without prejudice Discussions 11 January 2021
[79] On 11 January 2021, Mr Wilkinson sent an email to Ms Robinson enquiring whether she had ‘taken professional legal advice on the without prejudice option mentioned on the 23rd December.’
[80] Ms Robinson responded to this as follows:
“Hello David,
Thank you for getting in touch. I am beginning to become concerned that I have not entered into any discussions with the business in relation to any “Without Prejudice” agreement and yet my work email access appears to have already been switched off, with the password being changed on the 23rd of December, and I appear to have been stood down from work today, with another staff member doing my job even though I am capable of working today, and have offered to login and work remotely.
I am beginning to feel that a decision has already been made by the business to terminate my employment before I have consented into entering into any agreement with the business.
To be clear, I have not at any stage agreed to leave the business, but I feel like I am being pushed to go.
Once I receive a firm undertaking from the business as far as a date and time to discuss the “Without Prejudice” offer, or receive such an offer in writing from the business, at that stage I will decide whether I will obtain legal advice or not.
Kind regards Emily”
[81] Mr Wilkinson replied to this email stating:
“Hi Emily,
Setting aside that I am somewhat confused by your response, as nothing has changed in relation to decisions made by the business since our discussion on the 23rd.
During that discussion, I advised you that we would be continuing with the formal disciplinary procedure and that would also include a recent conversation with Michelle and that I would be standing aside and engaging an independent person to run that investigation.
I then asked you if you were aware of your potential option to take a without prejudice path and you indicated that you were not aware of that option and I suggested that you seek some advice on that and that we would take things up again in the new year.
Since then there have been some issues with scheduling over the break and a phone conversation you had with Liani last Friday that will be added to that formal disciplinary procedure, if required.
All I am trying to do is to set up the next steps for whichever path you decide to go down.
Please let me know, by the close of business today, whether you would like me to engage the independent investigator or whether you would like me to set up a meeting with you for the next step in the without prejudice path.
Regards.”
[82] Subsequently, after receiving the aforementioned email from Mr Wilkinson, Ms Robinson emailed back noting that she did not see the value in engaging an independent investigator due to them not being independent because they would be paid by the business and because she thought that even if the investigator did find an outcome in her favour, it would only really be a stay of execution as it was made clear to her that there was a desire to manage her out of the business.
[83] Ms Robinson said on that basis, she thought that it would be best to proceed with getting the without prejudice discussion organised sooner rather than later.
[84] Mr Wilkinson responded to Ms Robinson’s request for without prejudice discussions as follows:
“Hello Emily,
Thanks for sending that through.
If I understand correctly you would like to proceed with the without prejudice option so the next step would be for us to meet to have the without prejudice discussion and see if we can reach an agreement which would then be documented in a deed of release.
You will not be required to attend the office until we resolve the issues and I would like to meet with you at 3:30 tomorrow afternoon, at your place and, although not necessary, if you would be more comfortable having a support person present I am happy for you to do so.
Please keep in mind that they are there to support you but not speak on your behalf.
Please let me know if this time and location suits you.
Regards”
[85] Ms Robinson responded to this email from Mr Wilkinson noting that she would like to proceed with the without prejudice meeting and was available at 3:30pm, but did not think it was appropriate for a work meeting to be at her place. She suggested to Mr Wilkinson that a more appropriate location would be the office, a café, library or another location that wasn’t her home.
[86] Ms Robinson also clarified if this was a without prejudice meeting or simply a meeting to which Mr Wilkinson replied, “it will be a without prejudice meeting but they are fairly informal hence no real need for support people.” Ms Robinson replied to this stating that ‘I will have my support person though.’
Without prejudice meeting on 12 January 2021
[87] On 12 January 2021, Ms Robinson with her representative Mr Dyer attended a meeting at Caboolture Library with the Respondent. However, this meeting was unsuccessful, as Ms Robinson and the Respondent were unable to agree on the terms of a potential settlement between the parties.
[88] Ms Robinson’s submission was that during the course of this meeting, Mr Dyer cautioned Mr Wilkinson that in his experience as a trained HR Practitioner, that whilst the situation wasn’t untenable, he was concerned that the Respondent’s actions in organising a without prejudice meeting to discuss the amicable termination of the Applicant’s employment after only one single written warning (that at that stage only pertained to a matter that did not constitute serious misconduct in accordance with the Fair Work Act) was a dangerous proposition, and one that would be vigorously contested by the Applicant if the Respondent saw fit to try and terminate the Applicant’s employment after this one single event in solitude, unless the termination came to fruition in a manner that was mutually acceptable to all of the parties.
[89] Mr Wilkinson said that in the course of the meeting he explained to Ms Robinson about the continuation of the disciplinary procedures and that they would now also include five rostering issues that had cost the company money as they had to pay support workers their penalty wages but could not claim payment, and also that the aggressive phone calls with Ms Holder and now Ms McCarthy would be added to the process.
[90] Mr Wilkinson said he then offered to withdraw the pending disciplinary actions so that Ms Robinson could avoid having a dismissal against her.
Request for Ms Robinson to complete a Grievance Report Form 14 January 2021
[91] On 14 January 2021 Mr Wilkinson sent email correspondence to Ms Robinson as follows:
“Hello Emily
I wish to take the time to address some concerns that you have raised below:
1. Please be advised that at no time has your employment been terminated and you are still employed by Your Way Support Services Pty Ltd.
2. At no time were you forced to participate in a Without Prejudice meeting, the choice to participate in this meeting was made voluntarily by yourself.
3. The Company would like to advise that it is committed to promoting a fair, safe and healthy working environment in which everyone is treated with dignity and respect and in which no individual or group feels unfairly treated.
As you have raised some concerns we confirm that your concerns are considered seriously and will be investigated, and addressed appropriately, however, in order to effectively and efficiently do so we will require some further information.
Please complete the attached Grievance Report Form detailing any instance where you feel you have been unfairly treated providing specific details including dates, incident details, witnesses etc. and return to the office by close of business this Friday, 15th January.
All matters and information relating to this investigation are strictly confidential and you are directed not to discuss them with any other person without my express prior consent. Any failure by you to maintain confidentiality may lead to disciplinary action.
If you have any enquiries in relation to this matter, please contact me on [redacted].
Regards
David Wilkinson”
[92] It was submitted for Ms Robinson that by this time Ms Robinson had been stood down from the workplace for an entire working week for no reason and without cause.
Itemised grievances 15 January 2021
[93] On 15 January 2021, Ms Robinson returned a grievance form to Mr Wilkinson as requested, which contained a list of 12 different grievances which are summarised below. Ms Robinson noted she was only given 24 hours to respond and a failure to do so would have been considered a failure to follow a lawful and reasonable management instruction. It was submitted for Ms Robinson that she originally never had any intention of lodging a formal grievance with the Respondent, as from her point of view the process was completed.
Grievance 1 - Sexual Harassment 28 July 2020 and 6 August 2020
[94] Ms Robinson submitted that Ms Mitchell approached her desk and made remarks about her breasts on at least two occasions being 28 July 2020 and 6 August 2020. Ms Mitchell allegedly said “Oh that’s the naughty shirt Emily. I can see your boobies. There is too much boobies in that shirt.” Ms Robinson said that Ms Mitchell requested she zip up her jacket so it was more appropriate.
[95] It was submitted by Ms Robinson that these remarks were not only highly inappropriate by drawing attention to her breasts and making her feel uncomfortable in the workplace, but were made in front of the office which caused further embarrassment.
[96] On one occasion, Ms Robinson said that Ms Mitchell’s remarks were so inappropriate that Jaime (previous Support Coordinator for the Respondent) stepped in and expressed concern to Ms Mitchell and mentioned that Ms Robinson could not help her breast size and it was ridiculous. Ms Robinson said she also expressed to Ms Mitchell that “I can’t help that I have boobs, I have a modesty cover on”.
[97] Ms Robinson said that she felt that the outfits she was wearing were modest as she was wearing modesty covers. Ms Robinson further said that she has quite large breasts and felt she was discriminated against due to her breast size and that many other ladies in the office wore more revealing outfits and were told they looked ‘lovely’ without having inappropriate remarks made. Ms Robinson said that the same standards were not upheld or made clear for everyone in the office. She said that regardless to whether she felt the shirts were appropriate, she did not wear them into the office again after management making remarks about her breasts.
[98] Ms Robinson’s evidence was that how it was handled was highly inappropriate and there were other ways the concerns could have been handled discretely, politely and with dignity.
[99] In relation to this point, the Respondent submitted that Ms Robinson failed to wear the correct company uniform in direct conflict to the Company’s policies and procedures, and at no time during the informal or formal discussions has she given a reasonable or valid explanation as to why she was not wearing the uniforms supplied by the company at the time for each breach.
[100] This point was explored in oral evidence during the hearing. Mr Wilkinson said the issue of dress code was related to grievance number 7, a reference to grievances made in writing by Ms Robinson in response to an invitation to do so from the Respondent on 14 January 2021. The issues concerning dress code, personal phone calls and disclosing personal information were said to have occurred prior to the conversation in September 2020 and Ms Robinson said after that she wore the uniform. Ms Robinson said it had not been raised again.
[101] Mr Wilkinson said it was the policy that the uniform was compulsory. Ms Robinson said the policy had not been enforced and referred to a number of other staff that did not always where the uniform.
[102] Ms Sorby gave evidence that she wore a uniform everyday although she did not when she was an apprentice. Ms Sorby said she started as a permanent sometime in 2019. Ms Sorby said the uniforms were worn by permanent employees.
[103] Ms McCarthy gave evidence that uniforms are provided and it is expected that they be worn. Ms McCarthy said she has always worn a uniform except for the couple of weeks until she was provided with a uniform. Ms McCarthy said she has been employed for 7 or 8 months. Ms McCarthy evidence then said she usually wore her uniform. Ms McCarthy said she came to the office once after moving house not in a uniform and then changed into uniform.
Grievance 2 - Bullying August 2020 – Amy Mitchell and Erin Christian
[104] Ms Robinson’s evidence was that she had just started work when she asked Ms Mitchell a question, who was sitting at her desk with Ms Christian. As she walked up to them, she said that Ms Christian and Ms Mitchell proceeded to ask “what was wrong with your hair? Its slick up top.”
[105] Mr Robinson said that she explained her hair was very slightly damp up top and that it would be dry very soon, to which they told her that she needed to leave longer to get ready. Ms Robinson said that she apologised and explained that when she wakes up with a headache, sometimes washing it helps. She submitted that her hair is very thick, and she didn’t quite dry it up the top long enough. Ms Robinson submitted that she also explained if she put her hair up while wet, her headache would get worse.
[106] Ms Robinson submitted that a little while later she had to walk into the back office for something and Ms Christian was in the back office with Sarah. When she walked in Ms Christian proceeded to exclaim ‘Your hair really does look horrible today Emily.’ Ms Robinson said that this was said in front of Sarah and she felt very embarrassed and put down. Ms Robinson said that she expressed to Ms Mitchell that she felt embarrassed to be put down in front of the office staff, and no resolution was offered.
Grievance 3 - Unclear expectations leading to formal meeting, lack of compassion and bullying and September formal conversation – Amy Mitchell , Erin Christian
[107] Ms Robinson submitted that on 24 August 2020, she attended a meeting about training for her new role. During this meeting she said she was asked to go to the Gold Coast for training on Tuesday and Wednesday. She explained that she had a vet appointment, and she was going away for a long weekend Thursday to Monday, as per her approved leave, so she needed to get ready to go away after work, and as it was not arranged earlier, she would prefer to go next week.
[108] It was submitted by Ms Robinson that she was asked if she could just rearrange her vet appointment to suit or drive the 1.5hour trip (with good traffic) there and back both days. She said she rearranged her vet appointment to suit the training and to do as requested by management. As she was not prepared to be going away Tuesday to Wednesday, she had planned on doing her washing Monday night for uniforms for the week. However instead of being able to do this she had to get her animals ready for her to be away and as she had dogs, a saltwater tank and reptiles, and this wasn’t an easy task. Ms Robinson said that she also had to pick up her sister who would be house sitting for the two days.
[109] Due to this, Ms Robinson said that she did not have a uniform ready for the two days, so she packed respectable office clothing and had been advised multiple times that a uniform wasn’t compulsory.
[110] While she was away on the Gold Coast, Ms Robinson said that she had a message from her husband advising that his mum was in hospital and was likely to pass away in the next day or so. She said she advised her line manager of this, and that she was quite upset and concerned. She said she wanted the line manager to be aware of the conversation so she could understand if her performance was not 100%.
[111] Ms Robinson said that Ms Mitchell questioned her about if it was Rhona that had worked for Your Way previously (her husband’s birth Mother). She said she explained how her husband was raised by the Grandma and that was Mum to him. She said they had a general conversation about her husband and how she had enjoyed getting to know Rhona better while she was here.
[112] Ms Robinson submitted that while she was away on the long weekend (27 August 2020 to 31 August 2020) her Mother-in-Law passed away. She had advised work of this and advised she would be leaving Friday (4 September 2020) to attend her funeral.
[113] Ms Robinson said that when she returned to work on 1 September 2020, she was asked to go into the meeting room. In the meeting room she had Ms Mitchell and Ms Christian both have a formal conversation about inappropriate dress and disclosure of a family connection, among other things.
[114] During this conversation, Ms Robinson said that she was told the clothes that she had been wearing were inappropriate and that she was not to wear singlets to work. She said she was a little confused as the shirt Ms Christian was wearing during the meeting was very similar to the blouse she had worn, however she was quickly advised by Ms Mitchell that Ms Christian’s shirt was a capped sleeve singlet, so it was appropriate. She was advised her shirts must have sleeves moving forward and be modest. She said she was also told that she ‘was a pretty girl and didn’t want people to look at me the wrong way.’ Ms Robinson said that this comment made her feel uncomfortable.
[115] Prior to this formal conversation, Ms Robinson said that she had not been inducted into the office or had any conversation in regards to what the employer deemed appropriate or inappropriate. She said that it is also not outlined in the employee handbook that shirts must have sleeves and this expectation was also not clearly shared throughout the office as there were other staff who would wear strapless shirts and singlets.
[116] Ms Robinson submitted that she was also broached about disclosing personal information about the “Christian / Robinson family’. She said that while she has and will continue to respect the wishes of Ms Christian, she felt the circumstances in which the formal meeting had occurred was insensitive.
Grievance 4 - Unfair expectations and bullying – Michelle Holder
[117] On the 2 September 2020, Ms Robinson said that she had Michelle Holder call her and was quite rude while reprimanding her about not getting enough work done on 1 September 2020. She said that Ms Holder told her she was not working hard enough and compared her to Jeff, telling her that Jeff did 20 budgets in one day. Ms Robinson explained to Ms Holder she had only been in the role a day and she was still learning. Ms Robinson said she explained she had multiple meetings on 1 September 2020, and she was doing her best. Ms Holder advised her it was not good enough. Ms Robinson said that while she did recognise Ms Holder did apologise for comparing her to Jeff, the bullying did not stop from Ms Holder.
Grievance 5 -. Michelle – Verbal abuse / Bullying end of October 2020
[118] Ms Robinson said that she was having a phone call in regard to what Ms Holder required from her before she moved over to scheduling. Ms Robinson said that Ms Holder yelled at her over the phone accusing her of not doing as instructed as there was multiple folders in her work in progress folder. She said that Ms Holder claimed that she had messed all the work she had done for the week up and that because she didn’t do as she was told she would have to start her spread sheet again.
[119] Ms Robinson said Ms Holder yelled at her to such an extent that it caused quite a bit of emotional distress. Ms Robinson said Ms Holder would not allow her to explain herself and yelled over the top of her when she tried to. Ms Robinson said that Ms Holder said to her that “I never just do as I am told.” Ms Robinson said that if Ms Holder had allowed her to explain herself, she would have been able to tell her that her accusations were inaccurate and the folders she was yelling about were simply a visual prompt for herself to remember she was waiting for the signed budget back. The documents were in the correct folders as directed (Other than a few documents that were still in progress due to various reasons that she had explained.) Ms Robinson said that Ms Holder ended the call by hanging up on her.
[120] Ms Robinson submitted that Laura Tolson was witness to the emotional distress it caused. After this incident there was no mediation or resolution between her and Ms Holder. The concerns about Ms Holder yelling at her were not addressed further.
Grievance 6 - Concern about fraudulent use of signature – Michelle Holder in November 2020
[121] Ms Robinson said that she was looking at budgets for scheduling purposes when she noticed a recent budget and agreement for a member was uploaded with her signature that she had not sent off. She said that with this specific budget, she had previously told Michelle it was not completed as she had not been able to contact the member to confirm. Ms Robinson said she was directed to move it out of her ‘work in progress’ folder to the member folder instead.
[122] Ms Robinson’s evidence was that when she moved the budgets and agreements over, she wrote next to her name and signature – ‘uncomplete please change name and signature prior to sending off’ (wording may be slightly different due to not having access to check wording.) However, this was removed from the document and the document was still sent off in her name to the member. Ms Robinson said that once she found this, she sent an email to Ms Mitchell and also addressed Ms Mitchell directly. Ms Robinson said the grievance process was not followed and no resolution was provided to ensure it was an isolated incident.
Grievance 7 Bullying – 27 November 2020 – Amy Mitchell
[123] On the 27 November 2020, Ms Robinson said she was wearing a light pink buttoned up long sleeve office shirt. It was the first time for a long time she had felt confident to wear a nice shirt after Ms Mitchell’s previous breast comments, and she was very mindful it covered everything. Ms Robinson said that when the ‘book box lady’ came in they were buying items from her in the lunchroom, and Ms Mitchell then turned to her and exclaimed “are you wearing a pyjama shirt?”. Ms Robinson said that this was exclaimed quite loud and in front of Ms Griffin and the ‘book box lady’.
Grievance 8 Bullying / verbal abuse – 4 December 2020 Michelle Holder
[124] Recruitment had asked if they were able to utilise a support worker with a member they were trying to recruit for and Ms Holder had advised them that it was fine to do so. During this conversation Ms Robinson mentioned to Ms Holder that the support worker had actually been working weekly with another member and although nothing was locked in for next week yet, she had been advised they wanted to utilise Angela over the school holidays. Ms Robinson asked if she would be ok with the Member Concierge, Laura, to contact the member and if she intended on the continuation of use of the support worker on the day that would conflict. Ms Holder explained that she would not permit Laura to call the member, that the member had advised she would let us know a regular schedule after Christmas.
[125] Ms Robinson said that she then explained to Ms Holder that since that conversation, the member had called her and advised they were very happy with the support worker and wanted to use them over the school holidays. She said she explained to Ms Holder that she did not feel comfortable scheduling the support worker elsewhere before the member had been conversed with. Ms Robinson explained that in her role of scheduling officer, she is directly responsible for continuation of support for all of the Respondent’s members and that this particular member was hard to place support workers with and that if they were to utilise this particular support worker elsewhere, she could not be sure she would be able to find another suitable support worker for them.
[126] It was submitted by Ms Robinson that she would not leave them unsupported when she was confident that she could easily fill the other members’ shifts if required. She then told Ms Holder she was happy to call the member to ask about their scheduling needs for the next week so we could move forward. During this conversation, she said that she remained calm and acted only with the best interest of the members at heart and Ms Holder then raised her voice at her and told her “this is your problem! You overstep and don’t do as you are told!”. Ms Holder then told recruitment to go ahead and use the support worker.
[127] Ms Robinson submitted that she then explained to Michelle that she would not schedule Angela on a shift that conflicts with members’ needs. That once she was aware of the member needs, she would schedule Angela as per her duty as scheduling officer. Ms Robinson said that Ms Holder continued to yell and tell her ‘Well just as well I am not your manager! You can bring this up with Amy!’ Ms Robinson said she calmly told Ms Holder she would raise it with Ms Mitchell. As Ms Mitchell was not in the office, Ms Robinson decided she would raise it on Monday. Ms Robinson submitted that Vanessa was seated in her seat next to her and Laura Tolson witnessed this incident.
[128] Ms Robinson said that on the Monday she was presented with the invitation to the disciplinary meeting. As she was a little bit upset, she decided it would not be an appropriate time to raise the issue with Ms Mitchell. She said she also followed management’s direction as instructed by Michelle, to not call the member.
[129] Ms Robinson said when she was on her lunch break early that week (Possibly Wednesday) the member called the scheduling phone. When she came off lunch, she said that Ms Mitchell asked her why the member was concerned, she didn’t have support scheduled for next week. She said that she explained to Ms Mitchell that she had followed management’s direction and not called her like she had wanted to. She said that she explained that Ms Holder yelled at her and was very rude about it. Ms Robinson submitted that Ms Mitchell was not interested in resolving her grievance. Ms Robinson said that she asked Ms Mitchell if she would like her to now call the member as she had suggested and Ms Mitchell agreed for her to do so.
Grievance 9 Dismissal of health and Safety concerns – December 2020– Amy Mitchell & David Wilkinson
[130] Ms Robinson’s evidence was that in December she was sitting at her desk when Vanessa and Liani advised that they had both just been bitten by something from the carpets. Ms Mitchell was called over to discuss and advised that they were probably carpet mites that she would see if her husband could spray them. Ms Robinson said she asked Ms Mitchell if they could get the carpet professionally cleaned as it was a high traffic area and you could see the carpets were dirty beyond what their normal vacuum cleaner can handle. Ms Robinson said that Ms Mitchell responded “Are you going to do it?!” Ms Robinson said that she then advised Ms Mitchell she would get a carpet cleaner from Bunnings if she was allowed. This was ignored.
[131] Ms Robinson submitted that a few days later, she forgot her asthma puffer and was suffering quite bad. Ms Robinson said she had realised that she seemed to get much more frequent asthma when in the office. She decided to check above the desk and saw that the desk was covered so thickly with dust that when she wiped her hand over it, it was thick on her hand.
[132] Ms Robinson said that she sent an email of concern to Ms Mitchell about the cleanliness of the office. She expressed that she was concerned with the dust and that another employee was also appearing to have developed occupational asthma. Ms Robinson asked if we could perhaps look at getting a professional cleaner in on a regular basis as our ‘staff cleaning schedule’ was not cleaning the office thoroughly enough. Ms Robinson said that she had no response on this.
[133] Ms Robinson said she then went and raised the same concern to Mr Wilkinson. Ms Robinson said the only response she got was that the air conditioners were cleaned regularly, however her other concerns and the cleanliness of the office did not change.
Grievance 10 Unreasonable conduct of the disciplinary meeting
[134] During the meeting (on 16 December) Ms Robinson said that she advised Ms Mitchell that ‘I’m sorry you feel that way, but I do not agree.’ To which Ms Mitchell replied ‘I do not feel that way, it’s what happened.’ Ms Robinson replied ‘Once again I’m sorry, I do not agree.’ Ms Mitchell replied ‘There is nothing to agree about, it’s what happened.’ Ms Robinson said that she felt as though she was not listened to and her side of the story was not taken into account. She felt the outcome had been decided prior to the meeting.
[135] During the meeting, Ms Robinson said she expressed a grievance that she felt her asking for help was ignored. She was told the reason she did not receive help was because she did not tell management when she was ready for their help. Ms Robinson said she felt it was unreasonable that the meeting was supposedly about her ‘delegating work without management permission’, only to be told she should have delegated management’s time to receive her help that she requested. She was also told she was requested to provide a list of things she needed help on, which she has no recollection of happening.
[136] Ms Robinson submitted once she received the written warning her response was not fairly represented. Ms Robinson submitted that after she acknowledged management’s request to seek approval before asking for help from reception and agreed to follow the request moving forward, she asked for ‘my response’ to be removed from the written warning. Ms Robinson explained why she felt like her response was misrepresented and included her response letter once again. Ms Robinson said this letter has been previously sent to Ms Mitchell from her scheduling email account prior to receiving the written warning. Ms Robinson said she did not and has not received any response to this email.
[137] On 23 December 2020 when Ms Robinson was about to leave, Ms Robinson submitted that Mr Wilkinson requested that she step into the office. Ms Robinson said she mentioned that she was finished 20 minutes ago and had just packed everything up to go. Ms Robinson said Mr Wilkinson advised her it wouldn’t take long. Ms Robinson said she stepped into the office in which Mr Wilkinson advised that the disciplinary action would continue with an external investigation. Ms Robinson said Mr Wilkinson then asked if she knew what a without prejudice meeting was. Ms Robinson told him no she did not. Ms Robinson said Mr Wilkinson wrote it down on a sticky note and told her to Google it. Ms Robinson said Mr Wilkinson then advised her he would be setting these up after the holidays. Ms Robinson said she was concerned and unsure of why the investigation was to continue when she had acknowledged and was willing to follows management’s direction as per the written warning.
Grievance 11 Disregard for mental health and work life balance
[138] During the first COVID-19 lock down, Ms Robinson said they were all working from home. Ms Robinson said Ms Mitchell and Ms Christian asked if she felt they needed On Call during the week. She advised it wasn’t always that busy but she was happy to see if it was manageable and would advise them if it was not. Ms Robinson said doing on call was never part of her original duties, nor was she paid to work outside of her scheduled office hours.
[139] When she was working from home, she said she worked hard to manage the busy times and On Call. She was often was working 6am – 7pm instead of 9am-5pm. She understood it was uncertain times for everyone and she was willing to be on call so the support workers and members had an avenue to seek support.
[140] Ms Robinson said she recalled one evening when Qynn called around to visit her husband on an unrelated matter, because he found her working at 7pm well after close of business, he enquired what she was doing. She told him that COVID-19 had made things very busy and she was ensuring our members did not go without support. (she had a recent oncall matter.) Qynn advised her that her well-being was important too and that while he appreciates her effort, it’s time to stop. With that he asked me to turn the phone off and stop working for the night. He advised it was clear to him she was exhausted.
[141] Once Ms Robinson returned to the office, she advised Amy that she was unable to continue doing on call while in the office. She told her she was happy to help and work extra when it was such uncertain times, but she was not sleeping well or having any work life balance. Ms Robinson said she was just told they would not have an on call then.
[142] In October Ms Robinson said she was approached by Ms Mitchell to move out of the member concierge role back into scheduling. Ms Robinson said she advised Ms Mitchell that she was happy to move back into scheduling providing she was not required to do On Call during the week. Ms Robinson said she explained to Ms Mitchell that due to the recent stress with Ms Holder, she was needing to maintain a work life balance and have time for herself to look after her mental health. Ms Robinson said that she advised Ms Mitchell that she was seeking help to manage, however doing On Call when she was hoping to be able to exercise in the mornings wouldn’t work. Ms Robinson said Ms Mitchell agreed on these terms and advised Ms Robinson she would find solution for On Call during the week. Ms Robinson said the solution Ms Mitchell offered was that they didn’t have On Call and she just delt with it when she got into work.
[143] During the most recent disciplinary meeting, Ms Robinson said that Ms Mitchell mentioned about how On Call was meant to be her ‘job to do, but I wouldn’t do it’. Ms Robinson said she felt like her concerns for her mental health were disregarded after Amy tried to push her to do On Call.
Grievance 12 Disregard to COVID-19 guidelines and safety to others in the workplace
[144] Ms Robinson said that on multiple occasions Ms Mitchell has allowed people to work in the office while sick and displaying symptoms that could have been COVID-19 related. She said that these people were allowed to work while unwell and were not requested to get a COVID-19 test for clearance. Ms Robinson said that on one occasion Ms Mitchell herself came into work with no voice and coughing and Ms McCarthy also came into work and was allowed to work while coughing so bad she almost vomited. Ms Robinson’s evidence was that Ms McCarthy advised them she has pneumonia however was not COVID-19 tested, and that they were concerned about her condition. However, due to not having enough leave, Ms Robinson said that Ms Mitchell allowed her to stay in the office and come back to work while still unwell. Ms Robinson said that this made her felt unsafe and concerned for her health. Ms Robinson said that she had asthma and suffers very bad when she is sick. Ms Robinson said she did not feel it was right that sick people where allow to put others at risk of getting sick also.
1 February 2021 Outcome Grievance Investigation & request for second without prejudice meeting
[145] Mr Wilkinson submitted that on 18 of January 2021, he spoke to the Respondent’s advisors Employsure about Ms Robinson’s list of grievances which included the extremely serious accusations of Sexual Harassment, Bullying, Fraud and Health and Safety and explained that the only issue Ms Robinson had spoken about in their meeting on the 12 January 2021 was that she felt that she had not been given reasonable time to change her behaviour but that this did not appear on her list.
[146] Mr Wilkinson also submitted that he advised Employsure that, in most cases, Ms Robinson was complaining about management’s responses to her failings but failed to acknowledge that if she had not behaved in the way that she did, that was either in contradiction to the company’s policies and procedures and/or reasonable management instructions and/or inappropriate and unpredictable behaviour, that management would not have been put in that position. Mr Wilkinson said therefore it was a complete waste of their time and money as the Respondent would need to keep paying Ms Robinson until the claims were investigated and finalised.
[147] Mr Wilkinson said Employsure advised that each of the grievances listed would need to be investigated, and finalised, before proceeding any further, thus triggering a lengthy and expensive process for the Respondent to get all the listed parties to address each of the grievances/accusations, and to provide the evidence to Employsure for their independent assessment.
[148] Mr Wilkinson said that exhaustive process took over two weeks and on 1 February 2021, Mr Wilkinson sent an email to Ms Robinson regarding the outcome of the grievance investigation. This email read:
“Hello Emily
Your grievances dated 15/01/2021
We refer to the above grievances and our without prejudice meeting with you on 12/01/2021.
As you are aware, the matter was investigated by the company, and others, in accordance with our grievance management process.
We can confirm that we have had the evidence in relation to this matter thoroughly reviewed.
The investigation has now been completed and we confirm that the Company has finalised your grievances against Amy Mitchell, Erin Christian, Michelle Holder and myself in accordance with its relevant policies.
The allegations were found to not be substantiated as they were deemed to be reasonable management action however, moving forward we feel the relationship is untenable and therefore would like to enter into a without prejudice discussion with you this Wednesday afternoon at 3:30 at the Caboolture Library.
Please note that all matters relating to this process remain confidential and you are directed not to discuss them with any other person without our express prior approval. Any failure by you to maintain this confidentiality may result in disciplinary action.
Please confirm that the date, time and location is suitable and you have any enquiries in relation to this matter, please contact me on 0401 979 534.
Regards”
[149] Ms Robinson replied to this email noting she had a medical procedure scheduled, and requested the day be moved to Friday of that same week. It was noted for Ms Robinson that by 1 February 2021 Ms Robinson had been stood down on full pay from the workplace for three weeks for no reason and without cause.
Second without prejudice meeting 8 February 2021
[150] On 8 February 2021, a second without prejudice meeting took place.
[151] Ms Robinson submitted that this meeting saw the Respondent offer an even less substantive offer than what had previously been offered in the subsequent without prejudice discussion held nearly a month prior on 12 January 2021.
[152] Ms Robinson’s evidence was that in this meeting, Mr Dyer again cautioned Mr Wilkinson that the disciplinary matter should have been finalised already with the written warning that was issued previously on 17 December 2020, and that any further action to terminate the Applicant from her employment would likely be considered by the Fair Work Commission as an open and closed textbook case of Unfair Dismissal or Constructive Unfair Dismissal. The Submissions noted that again, Mr Dyer attempted to caution Mr Wilkinson about the importance of trying to resolve the issue to that of mutual satisfaction between himself and the Applicant, and warned him of the Applicant’s intentions to pursue a case of Unfair Dismissal with the Fair Work Commission in the event that the parties could not agree on an outcome and the Applicant was the subsequently summarily dismissed without cause.
[153] Mr Wilkinson said that he explained at the meeting that Employsure looked into the grievances and found each of the grievances to be unsubstantiated for various reasons and they agreed that they did demonstrate a catalogue of breaches of the company’s procedures and policies, reasonable management instructions and/or inappropriate unpredictable behaviour.
[154] Mr Wilkinson claimed that he also said that at no time had Ms Robinson made any apologies for her behaviour, at no time had he seen her say she is sorry for what she did, that she knew that it was wrong and that she won’t do it again and because of her behaviour, her position is untenable.
[155] Mr Wilkinson claimed he said to Ms Robinson that he had told her twice that her actions and continued behaviour rendered her position untenable and that her choice today is whether she wanted a resignation on her CV or not. Mr Wilkinson’s evidence was that he said to Ms Robinson that if she provided her resignation today, with immediate effect, the Respondent would agree to cease further disciplinary action. The offer was rejected.
9 February 2021 Management Meeting
[156] Mr Wilkinson said on 9 February 2021 the Respondent had an extensive management meeting to cover the whole of the issues raised and subsequent behaviour and concluded that:
i. In relation to the continued inappropriate and unpredictable behaviour, the continued breaches to the Company’s policies and procedures and the continued failure to follow reasonable management instructions, all had been thoroughly checked and been proven.
ii. The Respondent had done as much as it could to provide training, guidance, informal and formal meetings/warnings to try and give Emily the opportunity to change her behaviour.
iii. Ms Robinson, throughout the process, had been unwilling to cooperate in the disclosure of facts, had shown no remorse for her behaviour and there was no evidence to suggest that she was willing, or able, to change her behaviour.
iv. Ms Robinson’s aggressive and offensive behaviour towards her fellow co-workers represented a significant risk to their mental health and wellbeing and that it would be unreasonable of us to allow this to continue.
Termination on 10 February 2021
[157] On 10 February 2021, Ms Robinson received a termination letter that read:
“Hello Emily,
We refer to our meetings on Tuesday the 12th of January and Monday the 8th of February 2021.
We confirm that we will not be continuing with your ongoing employment, without notice or without payment in lieu of notice, due to your continual failure to comply with the company's policies and procedures, inappropriate behaviour, failure to follow reasonable management instructions and breaches to the terms of your employment contract.
Accordingly, we confirm that your employment with us is terminated effective today 10th of February 2021.
Your entitlements will be paid in accordance with the company's policies and procedures and your final payslip will detail these.
Please contact us if you wish to discuss further.
David Wilkinson
General Manager”
[158] I asked Mr Wilkinson while he was giving his oral evidence whether Employsure produced an investigation report or written advice for the Respondent in relation to the grievances raised by Ms Robinson on 15 January 2021. Mr Wilkinson said the employer had to conduct its investigation and provide that information to Employsure, however he said Employsure did provide a report.
[159] Ms Robinson’s evidence was that she was never interviewed by Employsure. Mr Wilkinson said as far as he was aware Employsure would have referred to Ms Robinson’s written material. Ms Robinson said she did not understand how Employsure could have reached its findings. It was put for Ms Robinson that the grievances themselves should have no relevance to her dismissal in any event.
[160] Just prior to the hearing being adjourned for lunch Mr Wilkinson indicated he would endeavour to obtain a copy of the Employsure report to provide to the Commission and the Applicant. On the matter recommencing Mr Wilkinson advised the Commission that the Employsure report was confidential and he was seeking advice from Employsure. I advised the Respondent if it was not put before the Commission then the Commission can only determine the matter on the evidence put before it and the Respondent cannot rely on it.
[161] It was submitted for the Applicant that if the Employsure report pertained to Ms Robinson’s grievances then it was irrelevant anyway. The Respondent ultimately did not produce the report.
HARSH, UNJUST OR UNREASONABLE
[162] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the considerations under section 387 of the Act.
(a) Whether there was a valid reason for dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
[163] From the evidence it is apparent that a disciplinary issue concerning Ms Robinson giving the scheduling phone to a receptionist without prior consent became the subject of a written warning issued on 17 December 2020. That disciplinary issue transformed into a new disciplinary process after Ms Robinson’s written response to the written warning on 21 December. Ms Robinson’s written response did not dispute the warning itself, but instead disputed the Respondent’s representation in the warning letter of Ms Robinson’s responses to the issue. Despite the issue itself being dealt with by the Respondent’s warning on 17 December, the Respondent appears to have taken Ms Robinson’s written response of 21 December as a basis to continue further disciplinary processes and escalate matters. It would seem as of 23 December Mr Wilkinson may also have referred to an alleged conversation with Ms Holder some time earlier as a basis for an investigation although no particulars seem to have been provided at the time.
[164] It is clear that the substance of the issue that was the subject of the warning of 17 December did not of itself constitute a valid reason for dismissal. The evidence overall tends to suggest the issue itself could have been addressed by something less than a formal warning given it would appear there was an element of misunderstanding on Ms Robinson’s part, and that the action of asking the receptionist to monitor the phone for a time while she caught up with other work was on the balance of probability not a deliberate action in defiance of her understanding of her employer’s direction.
[165] From 23 December 2020 it is apparent the Respondent wished to initiate without prejudice discussions with a view to bringing the employment relationship to an end. When without prejudice discussions did not produce an agreement, the Respondent then on 14 January invited Ms Robinson to complete a grievances form that the Respondent would investigate. Both the without prejudice discussions and the invitation for Ms Robinson to formalise grievances were initiatives of the Respondent, not Ms Robinson.
[166] The warning in December should have been the end of the disciplinary process concerning the allegation that Ms Robinson sought to delegate work without authority. Unless and until the Respondent had a proper basis to initiate a further disciplinary process that should have been the end of the matter. The only possible example of such an issue as at 23 December appears to be reference made by Mr Wilkinson without any particulars to an alleged conversation between Ms Robinson and Ms Holder some weeks earlier. There is nothing apparent from the grievances that Ms Robinson was invited to make on 14 January without them having been properly investigated and findings made, that could become the basis of Ms Robinson’s termination.
[167] It appears reasonably clear from the evidence of Mr Wilkinson that it was because of Ms Robinson’s response to the warning of 21 December that the disciplinary process was not complete at that time. It is also apparent Ms Robinson was never interviewed by Employsure or anyone else again after 23 December about any issues related to her conduct or performance.
[168] Some without prejudice discussions occurred between the parties but these discussions were not fruitful. It is also clear those discussions were not part of an investigation process. It seems from the evidence that the termination was as much a result of the failure of the without prejudice discussions than any specific conduct or performance issues.
[169] The termination letter indicates that the main reason given for the termination was due to “…your continual failure to comply with the company's policies and procedures, inappropriate behaviour, failure to follow reasonable management instructions and breaches to the terms of your employment contract…”. There were no more particulars as to the basis for these conclusions in the termination letter.
[170] Mr Wilkinson’s evidence was to the effect that the relationship had become untenable. Mr Wilkinson’s evidence was that in his mind there was also the aggressive phone call on 8 January 2021 with Ms McCarthy and the behaviour had just continued despite an earlier alleged aggressive phone call that was going to be discussed. There is no evidence of a proper investigation into either the alleged aggressive phone calls with Ms Holder, or Ms McCarthy. Ms Robinson contests that it was Ms Holder that was aggressive to her. Ms Holder did not give evidence in this matter. On the available evidence I am not satisfied Ms Robinson engaged in misconduct in the course of a telephone conversation with Ms Holder.
[171] It is clear Ms Robinson was not given a proper opportunity to respond to the allegation concerning the phone call of 8 January. Ms Robinson said that during the without prejudice discussions she did ask Mr Wilkinson for some more information about the allegation concerning 8 January and he was unable to do so. I have already concluded that while Ms Robinson was most likely abrupt during the telephone call, it was not conduct that founded a valid reason for termination of itself.
[172] The termination letter advised Ms Robinson was summarily dismissed. Ms Robinson submitted there was no basis to conclude serious misconduct to justify summary dismissal. I agree. The Respondent submitted in closing that its attempts to establish the facts have been thwarted by Ms Robinson’s reluctance to cooperate and the evidence speaks to the various behaviours being ongoing and the Respondent felt it had no choice to support the wellbeing of all staff, particularly the ongoing aggressive phone calls. Despite Ms Robinson indicating skepticism about an investigation, given her subsequent provision of a list of grievances in response to the request from the Respondent the evidence does not establish that Ms Robinson refused to cooperate with an investigation.
[173] It appears the issue of Ms Robinson not wearing her uniform was raised with her in the later part of 2020. Ms Robinson’s evidence was she wore her uniform after that. There is no evidence that the alleged five rostering issues that Mr Wilkinson claimed had cost the company money, was the subject of a proper investigation process, and the allegation was not made out on the balance of probability before the Commission given a lack of evidence concerning the issue.
[174] As stated, no evidence of a proper investigation having been conducted by either the Respondent or by Employsure into matters that appear to have become the basis for the termination were produced in evidence. The evidence before the Commission has not established that the conduct of Ms Robinson warranted the Respondent concluding that Ms Robinson was a safety or welfare risk to other staff of the Respondent, or that any other conduct or performance issues provided it with a valid reason for termination.
(b) Whether the person was notified of the reason
[175] Mr Dyer for Ms Robinson in closing submissions emphasised the lack of procedure in this case. The termination letter does not provide any level of detail as to what appears now to be put as the reasons for termination. I am not satisfied Ms Robinson was notified of the reasons for her dismissal given the termination letter does not provide any level of specificity concerning those reasons.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[176] Ms Robinson was not interviewed after 23 December as part of any investigation, and there was no evidence of a proper investigation being carried out, or a show cause process being followed. No report from Employsure was provided.
[177] Ms Robinson was never given any opportunity to respond to any specific allegation concerning an alleged aggressive conversation with Ms Holder, or the alleged aggressive conversation with Ms McCarthy on 8 January 2021 before her termination.
[178] On Mr Wilkinson’s evidence, it is claimed Employsure provided a report to the Respondent concerning the matters raised in Ms Robinson’s grievances, and it can only be presumed Employsure also may have considered the allegations of alleged aggressive phone calls involving Ms Holder and Ms McCarthy, as well as possibly the issue of five rostering issues that are alleged to have cost the company money. The evidence is again that no due process was followed into the rostering issues matter either.
[179] No investigation report was produced by the Respondent. No witness was called from Employsure. There is no evidence of any witnesses having been interviewed or statements provided to the Respondent or to Employsure concerning these issues. There is no evidence of an investigation that can be tested in order for the Commission to be able to rely on such evidence to support the claims made by the Respondent about the conduct of Ms Robinson.
Any unreasonable refusal by the employer to allow the person to have a support person present to assist in any discussions relating to dismissal
[180] In without prejudice discussions, the Respondent stated that ‘it will be a without prejudice meeting but they are fairly informal hence no real need for support people’. Mr Dyer attended these without prejudice discussions with Ms Robinson however the purpose of those meetings was not for discussions related to the dismissal as such. The evidence does not indicate that the Respondent refused a request of Ms Robinson to have a support person in discussions, however as summarily dismissed by correspondence there was not a show cause meeting where this could have occurred.
(e) Was Ms Robinson warned about unsatisfactory performance before dismissal
[181] Ms Robinson was provided a written warning on 17 December 2020.
(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
[182] The Respondent is not a small business and s.387(f) is a neutral consideration in this matter.
(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
[183] It would appear that the Respondent did not have an internal human resources expert however the Respondent had access to and was receiving advice from Employsure during the process.
(h) Any other matters that the FWC considers relevant
[184] There are no other matters that I have determined are relevant to the determination of this matter.
Conclusion on whether Harsh, Unjust or Unreasonable
[185] Having weighed each of the considerations under s.387, I am satisfied that given there was not a valid reason and other procedural flaws as set out above, the dismissal was harsh, unjust or unreasonable.
REMEDY
[186] Ms Robinson did not seek reinstatement and instead sought compensation. I am satisfied that reinstatement would be inappropriate in this case. In her Form F2, Ms Robinson said that she was seeking 26 weeks of her salary which she submitted was $28,000, or the maximum amount deemed to be a fair and reasonable amount by the Fair Work Commission.
[187] Ms Robinson’s employment contract notes that she earnt $56,000.00 per annum in a fulltime permanent position and confirmed this orally at the Hearing. It is common ground that no notice was paid to Ms Robinson.
[188] Ms Robinson gave evidence at the Hearing that after termination, she had been doing some casual work earning on average approximately $650.00 a week from the beginning of March. Ms Robinson said the hourly rate was $28. Ms Robinson said the work is insecure.
[189] Ms Robinson said that she enjoyed her job and had intended to continue in her employment with the Respondent had she not been terminated. The employment was for a duration of 12 months and one week. Mr Wilkinson said that Ms Robinson’s employment would not have lasted that long had she not been terminated given her conduct had involved aggressive behaviour.
[190] It is apparent to me that the duration of the employment was not long at just over one year, and it is also apparent that both Ms Robinson and Mr Wilkinson were unhappy with the state of the relationship between Ms Robinson and the Respondent and issues remained between them that would have needed to be investigated and if possible resolved if the relationship was to last. In fact, Ms Robinson had said herself that she doubted the point in an independent investigation such was the extent of her lack of trust in the Respondent.
[191] For the Respondent’s part, it was apparent there was going to be an issue about Ms Robinson allegedly costing the Respondent money regarding rostering issues that had not been properly explored. It would also seem the relationship between Ms Robinson and Mr Wilkinson and Ms Mitchell was quite strained.
[192] $56,000 divided by 52 weeks can be rounded to an amount of $1,077 per week gross. In all of the circumstances I estimate that had Ms Robinson not been dismissed on 10 February 2021, in all likelihood the relationship would not have lasted more than another ten weeks meaning Ms Robinson would have continued in employment to 21 April 2021. $1,077 multiplied by ten equals $10,770. Ms Robinson gave evidence that she earned an average of $650 per week from early March 2021. I will deduct from the amount of $10,770 the amount of $4,550 which equates to $650 earned per week from 3 March to 21 April reducing the amount to $6,220.
[193] As the date of the determinative conference was around the time I have concluded the employment relationship was likely to have ended, there is no need to consider any further reduction on account of contingencies.
[194] Ms Robinson said she had made efforts to get other work between 10 February and early March 2021 before securing other employment. On the basis of this evidence I am satisfied there is no need to make any further deduction on the basis of a failure to mitigate loss.
[195] There was no evidence to support a conclusion that an order for the payment of an amount of $6,220 by the Respondent to Ms Robinson would affect the viability of the business.
[196] On the basis of the evidence I am not satisfied that it is appropriate to reduce the amount of compensation on account of misconduct of Ms Robinson having contributed to the decision to dismiss, given I am not satisfied on the state of the evidence that Ms Robinson has engaged in misconduct that would warrant a further deduction.
[197] The amount of $6,220 does not exceed the compensation cap. I have determined to make an order that Your Way Support Services Pty Ltd pay to Ms Robinson an amount of $6,220 gross taxed according to law within 14 days of the date of this decision. An order to this effect will be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
Mr C. Dyer of Patcor HR & Business Consulting appearing for the Applicant
Mr David Wilkinson appearing for the Respondent
Hearing details:
2021,
Brisbane:
April 20
Printed by authority of the Commonwealth Government Printer
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