Francine Rolfe v Kids Choice Els WA Pty Ltd T/A Kids Choice
[2015] FWC 6458
•18 SEPTEMBER 2015
| [2015] FWC 6458 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Francine Rolfe
v
Kids Choice ELS WA Pty Ltd T/A Kids Choice
(U2014/13803)
DEPUTY PRESIDENT KOVACIC | MELBOURNE, 18 SEPTEMBER 2015 |
Application for relief from unfair dismissal.
[1] On 18 November 2014 Mrs Francine Rolfe (the Applicant) filed an application under s.394 of the Fair Work Act 2009 (the FW Act) alleging that the termination of her employment by Kids Choice ELS WA Pty Ltd T/A Kids Choice (Kids Choice – the Respondent) on 31 October 2014 was harsh, unjust or unreasonable.
[2] In its response, which was lodged with the Fair Work Commission (the Commission) on 4 December 2014, the Respondent raised a jurisdictional objection regarding the application. The Respondent objected to the application on the basis that the Applicant had not been dismissed as in its view she had resigned from her employment on 28 October 2014.
[3] The application was heard on 12 March 2015. Ms Joanne van der Plaat appeared with permission for the Applicant, while Mr James Pearce of Counsel appeared with permission for the Respondent. The hearing concluded on the basis that closing submissions would be provided in writing, with the Respondent’s closing submissions in reply to be filed on 7 April 2015.
[4] Mrs Rolfe gave evidence on her own behalf, together with her husband, Mr David Rolfe, and Ms Jacquelle Miners, the cook at the Kids Choice childcare centre in Cooma. Ms Diane Girvin, the General Manager of NumeroPro Pty Ltd (NumeroPro) which manages the Kids Choice centre in Cooma; Ms Stephanie Mylan, an employee of Kids Choice in Cooma; and Ms Marnie Testa, the Business Development Manager for NumeroPro, gave evidence for the Respondent.
[5] For the reasons outlined below, I have found that Mrs Rolfe did not resign from her employment but was dismissed at the Respondent’s initiative. I have further found Mrs Rolfe’s dismissal was harsh, unjust or unreasonable. As to the issue of remedy, based on the limited material before the Commission and in circumstances where the Respondent has sold the centre, I propose to convene a conference of the parties, including the new owner of the centre, to further discuss the issue of remedy.
Background
[6] The Respondent operates eight childcare centres across regional Queensland, New South Wales, Victoria and South Australia. Mrs Rolfe commenced employment with the Respondent as an Early Childhood Teacher on 26 August 2013 at its Cooma childcare centre. Mrs Rolfe subsequently accepted the position of Centre Director/Nominated Supervisor for the centre and commenced in that role on 9 January 2014.
[7] On 24 October 2014 the Respondent received a complaint from a parent of two children enrolled at the centre. The complaint alleged that Mrs Rolfe had instructed an employee at the centre to withhold food from the children as a disciplinary measure. The Respondent confirmed this with the employee in question, Ms Mylan.
[8] Early on the morning of 28 October 2014 an incident occurred between Mrs Rolfe and Ms Jodie Reed, another employee at the centre. Mrs Rolfe subsequently contacted Ms Testa requesting a meeting to discuss the incident. That meeting occurred by telephone at around 10 am that morning. Present at the meeting were Ms Testa and Ms Girvin for the Respondent and Mrs Rolfe and Ms Miners. Ms Miners was asked to attend by Mrs Rolfe as a support person. At that meeting Ms Testa raised three issues:
(i) the abovementioned parent complaint;
(ii) the incident with Ms Reed; and
(iii) a staff complaint about Mrs Rolfe sending home paperwork for an employee to complete while the employee was on sick leave.
[9] Mrs Rolfe became upset when discussing the parent complaint and walked out of the meeting. Mrs Rolfe proceeded to collect some personal effects and her grandson, who is enrolled at the centre, and went home. Precisely what was said by Mrs Rolfe is disputed and is discussed in greater detail below. However, the Respondent interpreted Mrs Rolfe’s comments before she walked out of the meeting as indicating that she was resigning from her position at the centre.
[10] Ms Testa subsequently telephoned Mrs Rolfe that afternoon and left a message for Mrs Rolfe to contact her. It is not disputed that Mr Rolfe contacted Ms Testa early on the morning of 29 October 2014 and advised her that Mrs Rolfe was unwell and that she would not be at work that day and possibly for the rest of the week. Ms Testa also advised Mr Rolfe that she understood that Mrs Rolfe had resigned on 28 October 2014 and asked that he get Mrs Rolfe to call her.
[11] Mr Rolfe and Ms Testa spoke again on 30 October 2014 when Mr Rolfe informed Ms Testa that Mrs Rolfe was scheduled to see the doctor the following day and that she denied having resigned from her employment.
[12] On 31 October 2014 Ms Testa wrote to Mrs Rolfe on behalf of the Respondent. The letter was sent to Mrs Rolfe by way of email. The letter stated:
“Dear Fran,
RESIGNATION OF EMPLOYMENT – KIDS CHOICE COOMA
I am writing to confirm your actions at our meeting on Tuesday, 28th October 2014 at the Kids Choice Cooma Centre…
I endeavoured to call you at 4.15pm on Tuesday, 28th October 2014 and left a message on your voicemail. I was advised by your husband on Wednesday, 29th October 2014 that you are not well and would not be in for the remainder of the week. A second call was then received from your husband on Thursday, 30th October 2014 again advising you were unwell and would not be in and that you had an appointment today with your Doctor. You have not made any contact directly with any person at the centre, nor any manager, including myself. Accordingly, Kids Choice confirms that you have resigned from your employment as at Tuesday, 28th October 2014, without notice and have made no further contact with the employer since that date. You be paid any outstanding entitlements and will be paid up to Tuesday, 28th October 2014.” 1
[13] Mrs Rolfe submits that she did not open the above email until 4 November 2014.
[14] Mrs Rolfe had an appointment with a doctor on 31 October 2015 where she was provided a WorkCover NSW – certificate of capacity. The certificate stated that Mrs Rolfe had no current work capacity for any employment from 31 October to 16 November 2014. As Mrs Rolfe left the doctor’s surgery, she saw Ms Miners and gave her the abovementioned certificate of capacity and asked that she provide it to the Respondent.
[15] In subsequent developments, Mr Rolfe sent copies of the Applicant’s medical certificates to the Respondent on 6 November 2014.
[16] As previously noted, Mrs Rolfe lodged her unfair dismissal application with the Commission on 4 December 2014.
The Applicant’s submissions
[17] In short, Mrs Rolfe submitted that:
(i) she did not resign by her words or actions;
(ii) she did not abandon her employment;
(iii) she did not repudiate the employment relationship;
(iv) the dismissal was at the Respondent’s initiative; and
(v) the dismissal was harsh, unjust and unreasonable.
[18] As to whether the dismissal was harsh, unjust or unreasonable, Mrs Rolfe submitted that:
- she was terminated on the basis of unsubstantiated allegations;
- there was no valid reason for her dismissal;
- she was notified by letter dated 31 October 2014 of the reason for her dismissal, adding that in her view this notification amounted to a dismissal;
- given the nature of the dismissal, she was not provided an opportunity to respond;
- there were never any discussions with Kids Choice relating to the dismissal;
- Kids Choice allowed her a support person to be present at the meeting of 28 October 2014;
- the issue of unsatisfactory performance was not applicable;
- Kids Choice did not adopt procedures that were, having regard to its size, appropriate in effecting her dismissal; and
- the absence of dedicated human resource specialists or expertise in Kids Choice is not applicable.
[19] Mrs Rolfe further submitted that medical certificates had been provided to Kids Choice and that her husband had informed Kids Choice on 29 and 30 October 2014 that she was unwell and was intending to return to work. Further, Mrs Rolfe questioned the logic of her keeping Kids Choice informed of her intentions if she was not intending to return to work.
[20] As to remedy, Mrs Rolfe submitted that she wished to be reinstated.
The Applicant’s evidence
[21] Key aspects of Mrs Rolfe’s witness statement 2 were that:
- she was very upset by the confrontation with Ms Reed and that she subsequently heard and saw Ms Reed call Ms Testa at the same time she had sent a text message to Ms Testa asking her for a chat regarding the incident;
- she subsequently called her doctor and made an appointment for later that morning;
- with regard to the teleconference with Ms Testa, she was completely blindsided as she had received no prior notice that the meeting was to be about anything other than the incident with Ms Reed;
- she was extremely upset at the accusation regarding the parent complaint and by that stage had become extremely stressed at the ambush leading her to say to Ms Testa “I’m done, I’m going home”;
- Ms Miners then said to Ms Testa “Fran is leaving, she’s really upset, she has a doctor’s appointment”;
- on 4 November 2014 her husband opened their home email to find the letter of 31 October 2014 from Ms Testa; and
- she disputed that she ever said she was resigning and that she said the words “I am leaving right now. I’m done” or the words “leaving right now, I’m done, I’m not coming back”.
[22] Mrs Rolfe also highlighted in her witness statement the discrepancy between the words attributed to her in the Respondent’s Form F3 response which quoted her as saying “leaving right now, I’m done, I’m not coming back” and the words attributed to her in the letter of 31 October 2014 which read as follows:
“…you chose to become belligerent and advised myself and the General Manager that you were “leaving right now, I’m done”…” 3
[23] Mrs Rolfe also attested that her husband continued to keep Ms Testa informed as to her progress and her intention to return to work.
[24] Under cross examination Mrs Rolfe attested, among other things, that:
(a) at the meeting of 28 October 2014 when discussing the parent complaint she stated “I wouldn’t do that”, adding that she did not instruct Ms Mylan to withhold food from the two children 4;
(b) also at that meeting she was informed that the intent was to discuss in detail each of the Respondent’s concerns, that she would be given an opportunity to respond and that in respect of the parent complaint additional follow-up would be required with the relevant department 5;
(c) she did not say at that meeting “There’s no need to take this any further, as I will not be here, anyway”, stating that she said “I’m done. I’m going home” 6;
(d) she said “I can’t do this anymore” when the issue of sending work home to an employee on sick leave was raised but disputed that she said “I give up” 7 – Mrs Rolfe later retracted her evidence that she said “I can’t do this anymore”8;
(e) as she left the meeting she heard Ms Miners say to Ms Testa that “Fran is leaving. She’s really upset. She has a doctor’s appointment” 9;
(f) she had told Ms Miners on the morning of 28 October 2014 that she had a doctor’s appointment 10;
(g) she made no inquiries as to what was going on at the centre from 28 October 2014 until she ran into Ms Miners on 31 October 2014, disputing that this was because she considered that she had resigned 11;
(h) she gave Ms Miners the doctor certificates on 31 October 2014 to pass on to the Respondent, adding that by mistake she had also given Ms Miners a copy of her mental health plan 12;
(i) she did not subsequently discuss with Ms Miners what she did with those medical certificates 13;
(j) Mr Rolfe had written to the Respondent on 6 November 2014 providing a copy of the medical certificates because they had been informed by Workcover that the Respondent had not received those certificates 14, though later on in her evidence Mrs Rolfe stated that she was not entirely sure who advised her that the medical certificates had not been received by the Respondent15; and
(k) she did not open Ms Testa’s email of 31 October 2014 until 4 November 2014 16.
[25] Mr Rolfe’s evidence 17 was that he came home from work on 28 October 2014 to find Mrs Rolfe extremely distraught. Mr Rolfe deposed that he contacted Ms Testa the following morning to inform her that Mrs Rolfe was unwell and will be off work for the rest of the week. He also attested that during that phone conversation Ms Testa asked whether he was aware that Mrs Rolfe had resigned from her position when she left the previous day’s meeting, to which he responded that Mrs Rolfe did not mention that. In a subsequent call to Ms Testa on 30 October 2014 Mr Rolfe stated that Mrs Rolfe was not really well at all and that he had spoken to her about her alleged resignation and that she denied having resigned. Mr Rolfe also attested that on 4 November 2014 he opened his email account and found two emails from Ms Testa, the first containing the letter of 31 October 2014 and the second containing a separation certificate. He deposed that he subsequently sought to telephone Ms Testa without success and in his witness statement set out his subsequent attempts to contact Ms Testa and their exchange of emails and text messages.
[26] Under cross examination Mr Rolfe:
(a) confirmed that he had written to Kids Choice on 6 November 2014 providing copies of Mrs Rolfe’s medical certificates, adding that he did so because he had received information from someone (identity not specified) indicating that the Respondent had not received those certificates 18;
(b) acknowledged that the Respondent no longer considered his wife an employee at the time he sent that correspondence 19 ;
(c) was unable to confirm when the Respondent had written to Mrs Rolfe accepting her resignation 20 ;
(d) attested that he had a phone conversation with Ms Miners in the fortnight after 28 October 2014, though he could not recall exactly when that conversation occurred or what was discussed 21 ;
(e) confirmed that he had two phone conversations with Ms Testa in the week of 28 October 2014, the first on 29 October 2014 and the second on the following day;
(f) stated that he could not recall Ms Testa asking him in those conversations to ask Mrs Rolfe to contact her and that in the second phone conversation he advised Ms Testa that Mrs Rolfe denied having resigned 22; and
(g) responded that he did not consider it a good idea for Mrs Rolfe to contact Ms Testa, primarily because of the distress which she was suffering 23 .
[27] Ms Miners’ evidence 24 was that during the course of the meeting on 28 October 2014 Mrs Rolfe had become quite upset when discussing the parent complaint, saying that she would never do anything like that and said “I can’t do this anymore, I give up.” She attested that Mrs Rolfe never said she was resigning and that she said “I am leaving, not coming back”. Ms Miners further attested that after Mrs Rolfe had left the room she said to Ms Testa “Fran is really upset, she’s going to the doctors” after which telephone call ended.
[28] Key aspects of Ms Miners’ evidence under cross examination were that:
(a) as Mrs Rolfe was leaving the meeting she said that she was going to the doctor 25;
(b) with regard to her first statement regarding the meeting on 28 October 2014 26, she felt pressured by Ms Testa to add her handwritten annotation indicating that Mrs Rolfe had said “I had enough…I quit, I am leaving now. Can’t do this anymore”27;
(c) reflecting on that statement overnight she decided that she wished to revise her statement and the following morning prepared a revised statement 28;
(d) she had not told anybody that she felt pressured to include the handwritten annotation on her initial statement until giving evidence before the Commission 29;
(e) she did not recall Mrs Rolfe saying during the meeting on 28 October 2014 “There’s no need to take this any further as I will be out of here, anyway” 30;
(f) Mrs Rolfe did say at the meeting that “I can’t do this anymore” and “I’m leaving now. I’m done” 31;
(g) she gave the paperwork that Mrs Rolfe had given her outside the doctor’s surgery to Ms Reed when she returned to the centre that afternoon 32; and
(h) she could not recall having had a phone conversation with either Mr or Mrs Rolfe after Mrs Rolfe had left the centre on 28 October 2015 33.
The Respondent’s submissions
[29] Kids Choice submitted that Mrs Rolfe had resigned from her employment and that there was no dismissal at the initiative of the employer. Kids Choice further submitted that:
- during the teleconference on 28 October 2014 Mrs Rolfe became aggressive and defensive and left the meeting and the premises stating words to the effect of “I am leaving right now, I am done”;
- thereafter Mrs Rolfe made no contact with it despite messages being left on her voicemail and with her husband; and
- on 31 October 2014 as it had not received a medical certificate, an application for sick leave or a response from Mrs Rolfe, it accepted Mrs Rolfe’s resignation in correspondence with effect from the date that it was tendered, i.e. 28 October 2014.
[30] With regard to Mrs Rolfe’s alleged resignation, Kids Choice submitted that:
- there is no requirement that a notice of resignation given by an employee be in writing and no particular wording is required;
- notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties; and
- the resignation given by Mrs Rolfe was ineffective to terminate the contract because of the inadequate notice of termination but that a person may waive that entitlement and accept the notice of termination that gives less than the required notice.
[31] In the alternative, Kids Choice submitted that Mrs Rolfe purported to resign from employment by giving inadequate notice of termination and that in doing so she repudiated the contract of employment. The letter of 31 October 2014 from Kids Choice accepted that repudiation and brought the contract of employment to an end. As such, Mrs Rolfe had not been dismissed within the meaning of s.386 of the Act.
[32] Kids Choice submitted that in the event that the Commission determines that its jurisdictional objection is not sustained and with regard to the criteria set out in s.387 of the Act, that:
- Mrs Rolfe was dismissed for valid reasons, including that she abandoned the workplace during working hours and in the middle of the meeting with her employer;
- that she behaved unprofessionally when she failed to meaningfully participate in a mandatory investigation into an allegation that she had instructed an employee to inappropriately punish two children by withholding food from them;
- the notice from Mr Rolfe that Mrs Rolfe was unwell was not sufficient notice under Mrs Rolfe’s contract of employment which required among other things that in respect of personal/carer’s leave for personal sickness that “Notice must be provided by you personally and directly to your Nominated Supervisor and not through a third party” 34;
- Mrs Rolfe was notified during the meeting of 28 October 2014 of the concerns that her employer had in relation to the parental complaint;
- Mrs Rolfe was notified in Ms Testa’s letter of 31 October 2014 that Kids Choice was treating her abandonment of employment as a resignation;
- it had concerns in relation to the conduct of Mrs Rolfe which it raised in the teleconference of 28 October 2014 and, alternatively, it had attempted to contact Mrs Rolfe following her walkout from that meeting to raise concerns in relation to her abandoning her employment and to which Mrs Rolfe failed to respond personally in a timely manner;
- Mrs Rolfe had a support person at the meeting of 28 October 2014, with her husband acting as a support person in the ensuing days;
- the termination of Mrs Rolfe’s employment related to her conduct rather than her performance, as such this consideration is not relevant; and
- it does not have dedicated human resource management specialists or expertise in the enterprise and as such this function is delegated to line management.
The Respondent’s evidence
[33] Ms Testa deposed 35, inter alia, that:
(a) the she had arranged the teleconference meeting for 28 October 2014 on the previous day for the purpose of an initial discussion regarding the parent complaint received;
(b) during the teleconference Mrs Rolfe denied that she had directed an employee to withhold food from two children, responding with “it’s not true… I would not do such a thing”;
(c) as she continued to provide further detail of the parent complaint Mrs Rolfe became quite upset, saying that she would “never do anything like that” and that she “can’t do this anymore” and that she “gives up”;
(d) Mrs Rolfe then became belligerent and stated “that’s it… I have had enough”, “I can’t do this anymore” and then finished with stating “I’m leaving right now… I’m done”;
(e) she tried to call Mrs Rolfe on the afternoon of 28 October 2014 and left a message for her to call her;
(f) she received a phone call from Mr Rolfe early on 29 October 2014 at which time he advised that Mrs Rolfe was not well and that she would not be in that day and may not be in for the remainder of the week and that she was visiting the doctor that day;
(g) Mr Rolfe called her again that afternoon and that during that discussion she stated that she understood Mrs Rolfe had resigned to which Mr Rolfe replied that he was not aware of that but would talk to Mrs Rolfe. During that phone call Ms Testa also asked if Mr Rolfe could ask Mrs Rolfe to give her a call;
(h) she spoke with Mr Rolfe again on 30 October 2014 at which time he stated that Mrs Rolfe denied resigning and that she was going back to the doctor; and
(i) on 31 October 2014, having not heard personally from Mrs Rolfe, she emailed Mrs Rolfe a letter accepting her resignation from 28 October 2014 on the basis of her words and actions to date.
[34] Under cross examination Ms Testa:
- affirmed that she did say in her 30 October 2014 telephone conversation with Mr Rolfe that it looked as though Mrs Rolfe had resigned as she had left the building after the meeting on 28 October 2014 and because she had not heard personally from Mrs Rolfe since then 36;
- stated that prior to the 28 October 2014 meeting she had general coaching conversations with Mrs Rolfe and had praised her for her performance 37;
- attested that the Respondent had received correspondence from Mrs Rolfe on other matters earlier in the week and that based on the information available to her she had a very clear understanding what the situation was 38 (the correspondence was an email response to a request for Mrs Rolfe to investigate discrepancy between a tax invoice and a receipt to which Mrs Rolfe responded “so sorry. I had a really bad morning. Can you call Jack Earle and asked her to sort it out. I was very stressed. So sorry, Leanne”39); and
- acknowledged that she had not been encouraged to contact Mrs Rolfe again prior to sending the termination letter of 31 October 2014 40.
[35] Ms Girvin deposed 41, inter alia, that:
(a) Ms Testa commenced the teleconference on 28 October by asking Mrs Rolfe whether she would like to have a support person to sit in on the discussion as it concerned a parent complaint;
(b) once Ms Miners joined the meeting Ms Testa outlined that there were a number of matters she wished to discuss, including the parent complaint;
(c) Mrs Rolfe responded that the complaint was “not true” and that she would “not do such a thing”;
(d) Ms Testa went on to outline the complaint from an employee at the centre and further details of the parent complaint which resulted in Mrs Rolfe becoming upset and stating “there is no need to take this any further as I will not be here anyway”;
(e) as Ms Testa continued to provide additional details of the parent complaint Mrs Rolfe became quite upset stating again that she would never do anything like that and that she “can’t do this anymore” and that she “gives up”; and
(f) Mrs Rolfe then said “that’s it… I have had enough”, “I can’t do this anymore” and finally stating “I’m leaving right now… I’m done” before leaving the meeting.
[36] Under cross examination, Ms Girvin stated that on 10 or 11 November 2014 the Respondent received the medical certificates posted by Mr Rolfe 42.
[37] Ms Mylan, who was the employee allegedly directed by Mrs Rolfe not to provide food to the two children, attested 43 that she recalled an incident where she was instructed by Mrs Rolfe to do so. Among other things, Ms Mylan attested that when she was passing on messages to the children’s mother about their day she mentioned they had been misbehaving and that they had not had any late afternoon tea as Mrs Rolfe had instructed her not to give them any. Ms Mylan further attested that she could not recall what the parent did after that.
[38] Under cross examination Ms Mylan was unable to recall the exact date of the incident 44.
Did the Applicant resign or was she dismissed?
[39] The initial issue to be resolved in this matter is whether or not Mrs Rolfe resigned or whether she was dismissed at the Respondent’s initiative.
[40] An analysis of the evidence in this matter and the material before the Commission indicates that it is not disputed that Mrs Rolfe at the meeting of 28 October 2014 said words to the effect “I’m done, I’m going home” and in respect of the parent complaint said words to the effect “I wouldn’t do that”. Further, the analysis indicates that it is not disputed that Mr Rolfe telephoned Ms Testa on 29 October 2014 and advised that Mrs Rolfe would not be in that day and will be off work for the rest of the week and again on 30 October 2014 when he advised her that Mrs Rolfe was not well that she denied having resigned. Thirdly, it is clear that Mrs Rolfe did not contact Ms Testa after leaving the centre on 28 October 2014 despite Ms Testa’s message requesting her to do so. Fourthly, it is also clear that Mrs Rolfe’s employment contract required her to personally advise her nominated supervisor of any absence for personal sickness and that she did not do so personally, though as previously noted Mr Rolfe had several conversations with Ms Testa in which he informed her of Mrs Rolfe’s absence. Finally, it is clear that Kids Choice had not received any medical certificate relating to Mrs Rolfe’s absence prior to Ms Testa sending her letter of 31 October 2014 accepting Mrs Rolfe’s resignation.
[41] That analysis also indicates that some of the comments attributed to Mrs Rolfe at the meeting of 28 October 2014 are disputed. For instance, Mrs Rolfe disputes that she said “There is no need to take this any further, as I will not be here, anyway”.
[42] Mr Pearce cross-examined Ms Miners extensively regarding her handwritten annotation on the first statement she provided to Ms Testa shortly after the meeting of 28 October 2014 (see paragraph [28] above). Ms Miners’ evidence was that she felt pressured to add those words and on reflection amended her statement to delete those words, among other things. The cross examination sought to highlight the inconsistency between that initial statement and Ms Miners’ witness statement. However, it is particularly noteworthy that the words which Ms Miners attributed to Mrs Rolfe in her handwritten annotation are not reflected in the witness statements of either Ms Testa or Ms Girvin. This suggests that the words were not said, for if they had been said they would add some weight to the Respondent’s contention that Mrs Rolfe had resigned.
[43] In support of her submissions Mrs Rolfe relied on a number of authorities, including the Full Bench decision in Searle v Moly Mines Ltd (Searle) 45. There are some similarities between the circumstances in this case and those in Searle in that the employer in Searle failed to receive a medical certificate from the employee and terminated the employment of the employee on the basis that she had abandoned her employment by failing to communicate directly with her employer and by failing to report for work. At the first instance, the relevant Commissioner determined that the termination of the employee’s employment was not at the initiative of the employer and as a result dismissed her unfair dismissal application. However on appeal the Full Bench determined that the termination of employment was at the initiative of the employer, highlighting that the whole of the employee’s absence was covered by a workers compensation medical certificate and that the employer knew the employee had a workers compensation claim. Among other things, the Full Bench stated in its decision that:
“It may be true… That the respondent concluded from the appellant’s failure to attend work and her silence that she had abandoned her employment. But the respondent’s conclusion was clearly incorrect. Where questions of jurisdiction are involved it is the facts which are relevant, not the parties’ subjective beliefs or the reasonableness of their conduct.” 46
[44] In this case the facts demonstrate clearly that Mr Rolfe communicated to Ms Testa on 30 October 2014 that Mrs Rolfe denied having resigned. In those circumstances the Respondent’s subjective belief that Mrs Rolfe had resigned is not relevant. While some of the comments attributed to Mrs Rolfe in the meeting of 28 October 2014 could in isolation suggest that she had left and was not intending to return to the centre, i.e. she had resigned, Mr Rolfe’s undisputed and unequivocal advice that Mrs Rolfe denied having resigned makes unreasonable any reliance on Mrs Rolfe’s comments to support a contention that she had resigned.
[45] There is also some substance, in my view, to the Applicant’s submission that there is no logic in her keeping the Respondent informed of her intentions if she was not intending to return to work.
[46] For all these reasons, and drawing on the decision in Searle, I find that Mrs Rolfe did not resign but was dismissed at the Respondent’s initiative. As such, the Commission now needs to turn its mind to whether Mrs Rolfe’s dismissal was unfair.
The statutory framework
[47] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Mrs Rolfe is a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which read as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[48] As I have found that Mrs Rolfe was dismissed, s.385(a) of the Act is satisfied. Mrs Rolfe contends that her termination was harsh, unjust or unreasonable, so s.385(b) is relevant. Kids Choice is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether the Mrs Rolfe was unfairly dismissed, I must now consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).
Was the dismissal harsh, unjust or unreasonable?
[49] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will address each of those criteria separately.
(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
[50] In Rode v Burwood Mitsubishi (Rode’s Case) 47a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd.48 The following is an extract from the Full Bench’s decision in Rode’s Case.
“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:
“Section 170DE(1) refers to a `valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective `valid’. A reference to dictionaries shows that the word `valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: `2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is `sound, just or wellfounded; a valid reason’.
In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.” 4
[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).
[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”
[51] Mrs Rolfe submitted that she was terminated on the basis of unsubstantiated allegations and that there was no valid reason for her dismissal.
[52] The Respondent submitted that if the Commission found that Mrs Rolfe did not resign that she was dismissed for valid reasons, including that she abandoned the workplace during working hours and in the middle of the meeting with her employer and that she behaved unprofessionally when she failed to meaningfully participate in a mandatory investigation into an allegation that she had instructed an employee to inappropriately punish two children by withholding food from them.
[53] Based on the material before the Commission it is not disputed that at the meeting of 28 October 2014 Mrs Rolfe vehemently denied having instructed Ms Mylan to withhold food from the two children and that she became extremely upset during the meeting such that she left the meeting and the centre prior to that meeting having concluded. Mrs Rolfe attested that she felt ambushed at the meeting as she had been given no prior indication as to the reason for the meeting and that she considered the meeting had been convened at her request to discuss the incident with Ms Reed earlier that day. On this issue, the material before the Commission shows that the meeting was arranged by Ms Testa the previous day and that the meeting invitation provided no explanation of the purpose of the meeting 49.
[54] While I agree that Mrs Rolfe’s decision to walk out of the meeting was unprofessional, particularly given her position as the Centre Director, I am not satisfied that of itself the action constitutes a valid reason for her dismissal, particularly in circumstances where the complaint against Mrs Rolfe does not appear to have been fully investigated and/or substantiated.
[55] As to the Respondent’s submission that Mrs Rolfe had not complied with her contract of employment regarding notification of her absence because of personal sickness, it is not disputed that Mrs Rolfe did not speak with Ms Testa after walking out of the meeting of 28 October 2014. However, it is also not disputed that Ms Miners stated as Mrs Rolfe left the meeting that Mrs Rolfe was going to the doctor or that Mr Rolfe contacted Ms Testa on 29 October 2014 and advised her that Mrs Rolfe would not be in that day and possibly for the rest of the week. This supports a finding that Mrs Rolfe complied with the spirit of her contractual obligation (as well as her obligations under s.107 of the Act) if not the letter of that obligation. Mrs Rolfe’s failure to comply with the letter of her contractual obligation to personally notify her nominated supervisor of her absence, does not in my view provide a valid reason for her dismissal.
[56] For all of the above reasons, I do not consider that there was a valid reason for Mrs Rolfe’s dismissal.
(b) Whether the person was notified of that reason
[57] The evidence in this case indicates that Ms Testa informed Mr Rolfe on 29 October that the Respondent considered that Mrs Rolfe had resigned her employment when she left the centre the previous day. As noted above on several occasions, Mr Rolfe advised Ms Testa on 30 October 2014 that Mrs Rolfe denied having resigned. In other words, it is clear that Mrs Rolfe was aware that the Respondent considered that she had resigned and that Mrs Rolfe disputed this prior to her dismissal. However, as indicated above, I have found that Mrs Rolfe did not resign.
[58] As to the alternative reasons relied upon by the Respondent for Mrs Rolfe’s dismissal, it is clear that Mrs Rolfe was not advised of these reasons either prior to her dismissal or in the letter from Ms Testa of 31 October 2014.
[59] This supports a finding that Mrs Rolfe was not notified of these alternative reasons.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[60] While the meeting of 28 October 2014 had been arranged to enable Ms Testa to discuss a number of issues with Mrs Rolfe, based on the material before the Commission it is clear that at that meeting much of the conduct which is alleged in the parent complaint is strongly disputed by Mrs Rolfe. In the absence of a concluded investigation the Commission is unable to form a view as to whether or not the alleged conduct occurred. As to the other two issues which Ms Testa raised with Mrs Rolfe, the meeting of 28 October 2014 appears to have been inconclusive as a result of Mrs Rolfe walking out of that meeting. Again based on the material before the Commission, it is not possible to come to any concluded view as to whether or not the conduct occurred.
[61] This supports a finding that Mrs Rolfe was given an opportunity to respond to the allegations made against her.
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[62] It is not disputed that Ms Miners attended the meeting of 28 October 2014 as a support person for Mrs Rolfe. There were no subsequent discussions relating to the dismissal. As such, I do not consider this factor to be a relevant consideration.
(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[63] It is not disputed that Mrs Rolfe’s termination was not as a result of unsatisfactory performance. Accordingly, this factor is not relevant.
(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
(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
[64] Mrs Rolfe submitted that the Respondent did not adopt procedures that were appropriate, having regard to its size. On the other hand, the Respondent submitted that it does not have dedicated human resource specialists or expertise in the enterprise and as such this function is delegated to line management.
[65] While the procedures followed in effecting the dismissal in this case may have been influenced by the size of the employer’s enterprise and the absence of human resource specialists, I do not consider that they explain the apparent haste in dismissing Mrs Rolfe on the basis that she had resigned and in circumstances where Mr Rolfe had clearly advised that Mrs Rolfe denied having resigned. To that end, I do not consider these factors to be a relevant consideration.
(h) Any other matters that FWC considers relevant
[66] Mrs Rolfe submitted that it will be difficult for her to find alternative employment in Cooma and that as a result she may endure a prolonged period of unemployment or under employment. Mrs Rolfe also disputed that her lengthy experience in the childcare industry automatically meant that she required minimal support, highlighting software introduced by the Respondent with which she was not familiar as indicating that she needed support. Further, Mrs Rolfe submitted that her lengthy experience in the industry had no bearing on whether she had an excuse for leaving the meeting of 28 October 2014. These latter two submissions were in response to the Respondent’s submission that Mrs Rolfe’s experience was a relevant consideration.
[67] I do not consider any of these factors to be relevant considerations. More particularly, while I note Mrs Rolfe’s lengthy experience in the industry, I also note that it is not disputed that she was not dismissed as a result of her performance which undermines the reliance on that experience as a relevant consideration.
Conclusion
[68] Drawing on the above consideration of the criteria in s.387, I find that:
- there was not a valid reason for Mrs Rolfe’s dismissal;
- Mrs Rolfe was notified that the Respondent considered that she had resigned and disputed that before her dismissal;
- Mrs Rolfe was not informed of the alternative reasons for her dismissal relied upon by the Respondent;
- Mrs Rolfe was given an opportunity in the meeting of 28 October 2014 to respond the allegations raised by Ms Testa regarding her conduct;
- Mrs Rolfe was able to and did seek the assistance of a support person; and
- there are no other relevant matters.
[69] Having considered all of the criteria in s.387 of the Act I find that Mrs Rolfe’s dismissal was harsh, unjust or unreasonable. Accordingly, I now need to consider the issue of remedy.
Remedy
[70] As previously noted, Mrs Rolfe sought to be reinstated to her former position.
[71] On the issue of remedy, the Respondent submitted among other things that there was no evidence of any attempts by Mrs Rolfe to mitigate her loss. The Respondent also highlighted that based on her treating doctor’s medical certificates that Mrs Rolfe had no current capacity for work for the period from 28 October 2014 until 15 March 2015, describing Mrs Rolfe’s capacity to perform the duties of her position, and the associated questions of health and safety, as critical issues in determining whether reinstatement was appropriate.
[72] On 1 May 2015 Ms van der Plaat wrote to the Commission to advise that the Respondent “has the business Kid’s Choice Childcare Centre, Cooma on the market and that it is under offer.” In that letter Ms van der Plaat requested “that if the Commission is so minded to order reinstatement to the Applicant in accordance with our submissions, that it be an order that would bind not only the Respondent, but any successor in title to the Cooma business.” Also attached to that letter was correspondence exchanged between the parties regarding the sale of the centre.
[73] Later that day Mr David Tuxworth, the Respondent’s legal representative, wrote to the Commission undertaking to promptly inform the Commission if the business were sold. In that letter Mr Tuxworth also stated that “The suggestion that an unknown, non party to the proceedings could be bound by an order made in these proceedings is risible. The applicant points to no power under the Fair Work Act 2009 by which the order can be made and there is none. Furthermore the Commission would never consider making such an order without giving the non party a fair hearing.”
[74] Mr Tuxworth subsequently wrote to the Commission again on 13 July 2015 advising that “the Kids Choice Cooma Childcare Centre has been in a state of due diligence for a proposed business sale. The due diligence has been finalised and the contracts are now unconditional with a settlement date to be announced.”
[75] Against that background, I propose to convene a conference of the parties, including the new owner of the centre, to further discuss the issue of remedy.
Appearances:
J. van der Plaat for the Applicant
J. H. Pearce of Counsel with D. Tuxworth for Kids Choice ELS WA Pty Ltd T/A Kids Choice
Hearing details:
Canberra.
2015:
March 12.
1 Respondent’s Outline of Submissions at Attachment F
2 Exhibit VP1
3 Respondent’s Outline of Submissions at Attachment F
4 Transcript at PN405-412
5 Ibid at PN435-437
6 Ibid at PN458-463
7 Ibid at PN480-482
8 Ibid at PN481 and PN484-491
9 Ibid at PN508-510
10 Ibid at PN528-533
11 Ibid at PN551-553
12 Ibid at PN555-564
13 Ibid at PN593-602
14 Ibid at PN603-604
15 Ibid at PN842-843
16 Ibid at PN626-642
17 Exhibit VP2
18 Transcript at PN889-901
19 Ibid at PN903
20 Ibid at PN905-918
21 Ibid at PN984-992
22 Ibid at PN997-1031
23 Ibid at PN1032-1033
24 Exhibit VP3
25 Transcript at PN1092-1102
26 Respondent’s Outline of Submissions at Attachment H
27 Ibid at PN1165-1174
28 Ibid at PN1185
29 Ibid at PN1088-1201
30 Ibid at PN1259
31 Ibid at PN1271-1283
32 Ibid at PN1294-1301
33 Ibid at PN1303-1314
34 Respondent’s Outline of Submissions at Attachment A, clause 10.4(c)
35 Exhibit P4
36 Ibid at PN261-262
37 Ibid at PN299-301
38 Ibid at PN306
39 Ibid at PN316-320
40 Ibid at PN309
41 Exhibit P1
42 Transcript at PN67-68
43 Exhibit P2
44 Transcript at PN140
45 174 IR 21
46 Ibid at paragraph 38
47 Print R4471
48 (1995) 62 IR 371
49 Exhibit P6
Printed by authority of the Commonwealth Government Printer
<Price code C, PR572040>
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