Gillian M Beck v Trinity Petroleum Service Pty Ltd
[2011] FWA 2158
•6 MAY 2011
[2011] FWA 2158 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gillian M Beck
v
Trinity Petroleum Service Pty Ltd
(U2010/15125)
COMMISSIONER SPENCER | BRISBANE, 6 MAY 2011 |
Termination of employment - Arbitration - whether harsh, unjust and unreasonable.
Introduction
[1] Ms Gillian Maree Beck (the Applicant) filed an application with Fair Work Australia (FWA) for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) following the termination of her employment by Trinity Petroleum Services Pty Ltd (the Respondent). The Applicant was a casual employee who had worked regularly and systemically 28.5 hours per week.
[2] The Applicant had been engaged as a Console Operator at the Mobil Edmonton Service Station from June 2008 until the termination of her employment on 1 December 2010 (she had been dismissed earlier but reinstated).
[3] The application proceeded to conciliation before a Fair Work Australia Conciliator; however it was unable to be resolved. The matter progressed to arbitration. The matter was heard in Cairns on 6th April 2011.
[4] The Applicant was self-represented and had a support person present. The Respondent was represented by Mr Alan Camp of Alan L. Camp & Associates; instructed by Mr Dean Pradal (Managing Director).
[5] Directions were set for the filing of evidence and submissions.
[6] Whilst not all of the submissions and evidence has been referred to in this decision, all of such has been considered in making this decision.
Background
[7] The Respondent stated that the Applicant’s employment was terminated for a number of reasons including repeatedly using obscene language and for intimidating conduct towards other staff.
[8] The Applicant contended that the termination of her employment was harsh, unjust and unreasonable. She submitted that she was not provided with the specific complaints made against her by other staff and customers. The Applicant argued she was treated comparatively differently to other employees who were engaged in similar conduct. She stated that other employees had also written inappropriate comments in the site diary and had used unacceptable language but they had not been disciplined as she had.
[9] Further she stated she had been denied procedural fairness, as the complainants or the details of the complaints had not been specifically communicated to her. The Applicant also stated that the Respondent had canvassed employees at the site for complaints about her.
[10] The Applicant further submitted that the warnings she received were not consistent with the procedure in Clause 2.5 (a) of the Trinity Petroleum Services Pty Ltd Collective Agreement (the Agreement) and that the absence of a dedicated Human Resources Manager at this site, affected the discipline and termination process that was afforded to her.
[11] The Applicant also submitted that she was denied procedural fairness as at no time was she informed that the warnings formed part of a disciplinary process exclusive to her. She also stated she was not provided with an opportunity to have a support person or representative present at the meetings and was not given the opportunity to respond to particular complaints. She had also sought that if she was found to have breached procedures, that she be given the opportunity to rectify her conduct, before further disciplinary actions occurred.
[12] The Applicant provided evidence that she considered the warnings of 20 February 2010 and September 2010 were only discussions informing her of workplace procedures.
[13] The Applicant did not seek reinstatement but sought the following:
“The opportunity to have my questions answered and finally find out who I am supposed to have hurt so badly and try to apologise and or clear the air, and my conscience.
An agreement between the parties that the Edmonton Daily Site Diary for 2010 be moved sealed and stored at head office with the only access being allowed to Dean Pradal and Sandy Hocking.
A formal ruling that the way I have been terminated both times, was unfair.
And any compensation for emotional distress, financial distress and harm to reputation, that Fair Work Australia deems suitable in relation to the details of my specific case.” 1
[14] The Respondent set out that the Applicant’s employment was terminated on the following basis:
“The applicant’s conduct was unacceptable as it included the following:-
Repeated use of filthy obscene language to fellow employees, customers of the Respondent and on at least one occasion, to the Site Manager.
Engaged in bullying and harassment of fellow employees against clear written Company guidelines which the applicant had signed, indicating she had received and understood them.
Refused the clear instructions of the Respondent to train another employee and then made written comments in the site diary that the fellow employee failed to complete tasks adequately.
Despite acknowledging written instructions to the contrary, allowed two male persons onto the site who were barred by the Respondent for good reason. One of these persons is alleged to be the son of the applicant’s witness/support person.
Repeatedly refused to carry out the Respondent’s clear written and verbal instructions on the above issues.
Refused to change demeanour, attitude or behaviour after repeated warnings.
Refused to carry out the Respondent’s clear written and verbal instructions to cease writing inappropriate comments in the site diary which upset fellow employees.
Caused a continuing serious effect on the welfare of other employees and the Respondent’s customers.
Caused a complete loss of confidence in her by refusing to comply with the Respondent’s instructions and caused concern to her fellow employees, managers and the Respondent’s customers.” 2
[15] The Applicant also alleged that the termination of her employment was unlawful as she had posted a Workplace Health and Safety Complaint to “the government department” on 18 November 2010, the day prior to the first dismissal. The Respondent was not made aware of this complaint, prior to or at the time of the dismissal. No connection between the filing of this complaint and the termination can be found.
Disciplinary Action
[16] The Applicant received a series of warnings related to her conduct. In summary terms the Applicant commenced employment in July 2008. In July 2009 the Applicant signed a ‘serious breach’ document after a meeting with Ms Hocking, the Retail Manager.
[17] The Applicant signed this document and acknowledged she must not swear or tell dirty jokes which offend, intimidate or humiliate; and that the verbal abuse of a client, supplier or staff member will not be tolerated under any circumstances. The Applicant signed the document confirming she was responsible to read the Company’s Harassment Policy (Standards of Business and Conduct Booklet). The warning stated that any breach of the Rules will be taken seriously by management and may result in instant dismissal.
[18] The Respondent’s ‘Harassment in the Workplace Policy’ states in part:
“It is the Company policy to prohibit any form of harassment in any Company workplace. The policy prohibits unlawful harassment based on race, sex, religion, age, disability, political conviction, marital status, pregnancy, lawful sexual activity, industrial activity, physical features, personal association and status as a parent or carer. The objective of this policy is to provide a work environment that fosters mutual employee respect and working relationships free of harassment. The Company specifically prohibits any form of harassment by or toward employees, contractors, suppliers or customers.
Under the policy, harassment is any inappropriate conduct which has the purpose or effect of: Creating an intimidating, hostile or offensive work environment; Unreasonably interfering with an individual’s work performance; or Affecting an individual’s employment opportunity.
......” 3
[19] The Applicant in her response (of 29 July 2009) to the serious breach document wrote as follows:-
“ I will admit that in the past some very minor indiscretions have been done by me (and other staff), but I hope we are able to start afresh and that you know I promised you I would be a lot more respectful of my job and a lot more professional in all my dealings.” 4
Also in the same letter she wrote:-
“I have been very cautious and conscious of my verbal habits at work which we discussed, not answering unrelated questions, commenting or discussing notes from other staff or supervisors in the diary, simply requesting they speak to the author etc, being mindful of the tone volume and content of my language and mannerisms.....
I feel, rightly or wrongly so, like the ice is extremely thin for me, and me only. Please put me out of my misery and let me know I’m not going to be wiped from the roster and lose my job? I am physically worried sick. I know I am casual and you are well within your rights to let me go at a moments notice, but I need to know I would have a chance to verbally respond before having shifts taken off me, as has happened to other staff. I desperately need to keep my job.” 5
[20] It was submitted by the Respondent that the Applicant knew her future employment was in question if she did not improve her demeanour, attitude and performance.
[21] A further verbal warning was provided to the Applicant on 20 February 2010 regarding her behaviour. Ms Catherine Bosworth indicated to the Applicant that her behaviour was disgraceful and is not to happen again.
[22] A further written warning was provided to the Applicant and all staff on 7 July 2010 in regard to the comments recorded in the site diary. A separate meeting was held with the Applicant at this time in regard to the warning and her conduct.
[23] The Applicant in her response to the July 2010 warning confirmed she had signed the rules but stated the rules had been updated and queried whether a copy was available at the site. The Applicant sought some understanding from Ms Hocking, as she stated that she had some difficulties in her personal life and had been experiencing depression.
[24] On 2 August 2010, Ms Hocking warned the Applicant about writing inappropriate comments in the site diary in breach of the written instructions provided on 7 July 2010. A final warning about the Applicant’s behaviour was given to her on 30 September 2010, as a result of complaints regarding the Applicant’s swearing and workplace harassment.
[25] The Applicant’s employment was initially terminated on 19 November 2010, for a continuation of the conduct. However after the Applicant contacted the Managing Director, he reversed the termination decision that day. Mrs Hocking, the Retail Manager, had been absent ill on the day of this initial dismissal and she stated that the Managing Director was not aware of the numerous warnings the Applicant had received.
[26] The Applicant was reinstated and the process was resumed. The Applicant was provided with an opportunity to respond at a further meeting on 29 November 2010, however again the Applicant left this meeting prior to its conclusion and her employment was subsequently terminated on 1 December 2010.
The Diary
[27] The Respondent was directed to produce the site diary in which the Applicant had written the comments, deemed to be inappropriate. The Respondent made this available at the hearing, as required. The site diary was a regular staff communication book used to record information between shifts.
[28] The Applicant was provided with a short adjournment (as agreed) to assess the site diary and as a result provided some references to other employees’ entries in the diary. These entries although emphatic in their direction to other employees about site issues, did not contain insubordinate accusations, as a number of the Applicant’s entries did. These entries of the other employees also pre-dated the 7 July 2010, warning to all staff, provided by Ms Hocking. The warning was provided in regard to the staff usage of the on-site diary entries.
The Act and the Agreement
[29] The unfair dismissal application was made pursuant to s.394 of the Act. In determining whether a dismissal was harsh, unjust or unreasonable, FWA is required to consider certain matters as set out in s.387 of the Act, as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
[30] Clause 2.5 (a) of the Agreement states:
“If a misdemeanour occurs, the employee will be formally counselled and warned. This counselling need not be in writing but can be a formal verbal exchange. A record of this meeting should be noted.”
Evidence
[31] Ms Sandra Hocking, Retail Manager for the Respondent, had been employed in this position for 7 years. She stated that the Applicant on commencement had signed a document to confirm that she had read the company’s policies and procedures booklet. The booklet details the expectations of employee behaviour. She stated a further copy of the policies was given to the Applicant in July 2009.
[32] Ms Hocking stated that she received a complaint about the Applicant’s behaviour in July 2009 and therefore she arranged a meeting with the Applicant and her Manager. At this meeting, Ms Hocking made the Applicant aware, that writing inappropriate messages (some of which are detailed later) in the work diary was against company policy. The Applicant responded to this in writing. In her response to the issues raised at the meeting she recognised her conduct and that her job was in jeopardy and confirmed that she would improve her behaviour.
[33] Ms Hocking stated that a memo was provided to all employees, including the Applicant in July 2010. The memo was on staff conduct and all staff were requested to sign this memo. Ms Hocking stated in the warning to all staff, including the Applicant, as follows:
“To: Mobil Edmonton Date: 7/07/2010
From: Sandy Hocking
Re: Staff Conduct
It seems that we are experiencing some problems with some staff where there have been instances of gossiping, tale telling, unnecessary notes written in the diary and unnecessary comments being made. All of which are harmful to our business here.
This sort of activity must cease immediately as it does nothing but cause ill feeling and disharmony throughout the staff at the site.
It does not portray Trinity Petroleum in a good light when customers are made aware of the gossip and the rumours and make comments to other staff about something that they have heard. Very unprofessional and damaging to our business!!!!
This sort of activity must cease immediately as it does nothing but cause ill feeling and disharmony throughout the staff at sites. I ask you all to think before you say anything about another staff member or Trinity Petroleum as you may be in breach of our Trinity Code of Conduct Booklet. Please take a moment to read this as some comments border on workplace harassment.
If there is a note in the diary, you are to read it and sign it as acknowledgement, not write smart comments below it. The diary is a communication book and not a gossip tale telling book.
I will be checking your diary weekly now on for comments and addressing where the need arises.
If you need to have something clarified, please do not hesitate to ask Cathy for assistance.
If this behaviour continues then I will have to take more serious actions to stop it. This is a final warning to all staff re this sort of behaviour.”
[34] With respect to this memo a separate discussion was held with the Applicant to discuss her behaviour. The Applicant signed this warning and had also signed the ‘serious breach’ document on 27 July 2009 in relation to swearing at the workplace.
[35] Ms Hocking provided evidence that she attended a further meeting on site with the Site Manager and the Applicant on 2 August 2010. Ms Hocking stated that she was aware that the Site Manager had a further meeting with the Applicant on 30 September 2010, to once again advise her that swearing was not acceptable and that a verbal final warning had been issued.
[36] The Applicant in her cross-examination of Ms Hocking; questioned her, as to why her employment was not terminated earlier on the basis of the incidents. Ms Hocking agreed that the termination could have been implemented earlier, but it was hoped that the Applicant’s conduct would improve.
[37] Ms Sandra Hinder (another employee) provided evidence that she also found the Applicant’s behaviour to be intimidating towards her and that she had spoken to the Site Manager about the Applicant’s behaviour in 2010. She stated the Applicant “would put me down and make me feel as though I was not good at the job” 6.
[38] Ms Hinder’s evidence was also that she overheard the Applicant swearing at a customer, when he wanted to purchase “a plain meat pie” from the cafe and she had stated that the Applicant wouldn’t get it for him. The Applicant in her evidence refuted this and stated only frozen pies remained and that she had offered to heat the pie for him.
[39] Ms Hinder further stated that the Applicant had not discussed with her first, the comments the Applicant put in the site diary regarding the Applicant training her to do the books. This was contrary to the Applicant’s evidence, whereby she stated she had first discussed her commentary in the site diary with the relevant person, before making the entry.
[40] Ms Hinder stated that the Applicant had objected to teaching her the banking process and had inferred that Ms Hinder was being trained to take her job and had written such in the site diary as follow:
“Does Sandra realise both banking and daybooks takes longer than 1 hour. I’m off console at 8AM and I’m not hanging around.
Should the manager be the one to teach daybooks?? Sandra has worked many day shifts, She should be taught by CATHY not me. Learning the daybooks is a complicated process, not something you can be thrown into when you don’t know how.
I was hired by SANDY 2 ½ years ago to do banking & daybooks on weekends. These duties won’t be taken off me without a very good reason. We have 4 staff who can do banking & 3 staff who know how to daybook. Is this not enough? It’s very rare for me to have these shifts off, so there should never be a need for Sandra to do it.”
“Unless of course, Sandra’s being trained so one of the other staff can be “bumped off”. This is what it looks like to me, and that’s not KOCHER!!!” 7
[41] Ms Hinder stated in her evidence, that due to the Applicant’s treatment of her she reached a position, where she did not want to go to work and she was frequently having anxiety attacks on the way to work. Ms Hinder stated that the Applicant used foul language and made indecent gestures to her.
[42] Mr Peel, another Console Operator stated he felt intimidated by the Applicant’s abusive language and had complained about it, to Ms Catherine Bosworth, the Site Manager.
[43] Mr John West, Console Operator, provided evidence concurring that in the time he had worked with the Applicant he had found her behaviour to staff and customers to be offensive. He said they regularly had a 30 minute shift changeover prior to the Applicant working from midnight. He stated that she would come into the Station using foul language whilst customers were present. He stated:
“Every night Gillian came to work she would yell how she hated the place and how everyone was out to get her and how she was going to “shaft” anyone who was after her job. She also said she would take Trinity Petroleum Services Pty Ltd to court if they terminated her employment.
Around Christmas time Gillian discovered that a new employee was learning how to do the books which Gillian used to do. Gillian started swearing and making various threats about other staff members such as repeating “no fucking cunt is going to take my fucking job”. She then wrote a long message in the workplace diary detailing how she was not happy with the new employee learning new skills. This is just one example of Gillian behaving as though she had lost her senses irrespective of who was around her, staff or customers.
I found Gillian’s behaviour so intolerable that I sought employment at another service station operated by Trinity Petroleum Services Pty Ltd. Whereas I found Gillian to be quite good at carrying out her duties this was soured by her unpredictable behaviour and personality.
At times when I tried to have a consoling talk with Gillian to find out what was wrong I was unable to make any headway as she would become abusive.
When I was told Gillian’s employment had been terminated I was not surprised and I wondered why it didn’t happen earlier.” 8
[44] Ms Catherine Bosworth, the Site Manager, stated that from the beginning of her employment in November 2009, she had witnessed the Applicant swearing whilst working. She provided evidence of a specific incident of the Applicant using obscene language as follows:
“From the beginning of my employment I observed, Gillian Beck swearing while working. For example, one morning at about 9:00am on Saturday 20 February 2010 we had a full shop of customers. Gillian was at the console when two young tradies entered the store to purchase something from the cafe. I heard Gillian yell from the console to the men. She said “I have just finished cleaning the fucking floor, now I have to clean the fucking thing again.” I apologised to the two men for what Gillian had said and their response was “That’s not the first time that this has happened.” Straight after this incident I met with Gillian and warned her that “Your behaviour is disgraceful and is not to happen again.”
I advised Sandra Hocking of the above incident.
On another occasion a customer walked in and said “hello” to an employee while Gillian was standing next to her.
Gillian reacted and the customer said “What the hell is wrong with her?” Gillian then went out the back and came back into the console area shortly after ranting and raving and swearing in front of other customers. I again told Gillian that her behaviour was unacceptable.” 9
[45] The Applicant argued that she was unaware that the conduct Ms Bosworth complained of, related exclusively to her conduct. Ms Bosworth denied this and relied on the separate meeting she undertook with the Applicant in relation to the conduct.
[46] On 2 August 2010 Ms Bosworth stated she attended a meeting with Ms Hocking and the Applicant. This meeting was subsequent to the Applicant’s written acceptance of the Standards of Conduct Booklet and the reiteration to her of the company policies about swearing and refraining from intimidating behaviour. At this meeting Ms Hocking advised the Applicant that her entries in the site diary were unacceptable. Ms Bosworth stated that whilst the Applicant was on leave in September 2010, she received a number of complaints from staff regarding the Applicant’s continued swearing. Ms Bosworth stated:
“When she returned I had a meeting with her and after putting the Company’s concerns to her I felt that her response did not show that she would change her behaviour. I gave her a final warning by stating, “I will not put up with this kind of behaviour anymore.”
I have given Gillian several warnings about her behaviour, on 20 February 2010, 30 September 2010 and I finally advised her that her employment was terminated on 19 November 2010 when she refused to discuss her unacceptable behaviour by walking out of the meeting.” 10
[47] The Applicant submitted that Ms Bosworth had actively sought complaints about her, however the evidence provided by the other employees openly demonstrated their concerns regarding the Applicant’s swearing. Ms Bosworth stated:
“During the first termination interview on 19 November 2010 I explained to Gillian that I had three staff members upset over a number of things and that I would like to hear her side of the story.
She responded in loud and aggressive tones and proceeded to walk out the door and would not listen to me.
I then stated “I have no other option but to terminate your employment.”
Gillian was reluctant to address her behaviour and did not want to listen to any issues about it.” 11
[48] Ms Bosworth also stated that the Applicant had been observed on security footage serving two banned customers, but she considered it was adequate to generally repeat to all staff that these customers were banned from the site. Whilst this incident was referred to in the issues related to the termination, given Ms Bosworth’s evidence it has not been considered as part of the reasons for the dismissal.
[49] The Applicant had also made the following diary entries about a security camera and the air conditioning in the service station:
“I’d like to request camera over kitchen console. If I’m watched my entire 9 hour shift, why aren’t they.”
“Who turned aircons to 23 degrees Friday 5/11. No!! It’s freezing in here. See note from head office 24 degrees no lower. Why is Cathy’s office like Antarctica? Where is the remote. Bet it’s not on 24 degrees either. One rule for some, another rule for others.”
[50] The Respondent was also concerned with the tone of these entries.
[51] Ms Bosworth stated the aim of the meeting on 19 November 2010 was to ascertain the Applicant’s response to the conduct issues raised with her, but that the Applicant would not participate in the meeting. Ms Bosworth confirmed that she had received complaints about the Applicant from other staff, but that the meeting with the Applicant didn’t progress to talking about the details of the complaints, as the Applicant left the meeting prior to its conclusion.
[52] The Applicant in her evidence stated that in the 12 months prior to her termination she experienced a lack of communications with her employer. The Applicant stated that she made numerous suggestions for improvement to work and safety procedures, which she stated were ignored. The Applicant submitted that:
“I found that I was being treated differently to other employees with less experienced employees receiving preferential treatment. My rosters and end of shift times were changed without consultation, which had the potential to adversely impact on my attendance. My manager abused me in front of co-workers and clients. I was subject to belittling comments in front of other employees such as “I am not going anywhere so you better get used to it” or “Give people enough rope and they will hang themselves” and my site manager would call me “Good Girl”. My work was sabotaged by withholding vital information many times. This unfair treatment was noticed by customers, some staff members, and suppliers.
Trinity Petroleum Services allege that I was issued with two “warnings”. The first being Sat 20th February, 2010 and the second being Thur 30th September 2010. Both of these meetings/warnings were verbal and there were no other persons present. I was not invited to have anyone attend with me. The first meeting was a quick personal understanding chat about accidentally letting a thought slip out vocally. The second I was advised was a warning given to all staff. It was my understanding that this second warning was about shift changeover procedures and behaviours and at no time was it specifically drawn to my attention that the content of the “warnings” related to my conduct exclusively.
On two occasions I have questioned both the Site Manager and Retail Manager in relation to the wellbeing of relationships amongst the staff, including me, and I was advised it would be sorted and everything will be O.K. I contend that procedural fairness has not been applied in relation to me. At no time was I informed that:
These alleged warnings formed part of a disciplinary process exclusive to me.
I was not given the opportunity to have a support person or representative present at meetings I was not given the opportunity to respond to any one complaint,
Or reach agreement that if the alleged breaches did not occur, what would happen,
If I was found to have breached procedures, that I be given the opportunity to rectify my behaviour before further disciplinary actions occurred.
I consider that rather than warnings, the discussions that occurred 20th February and 30th September 2010 were informing me of workplace procedure. The Trinity Petroleum Services Pty Ltd Collective Agreement describes the counselling and warning procedures at clause 2.5(a). This clause states that where counselling and a warning has occurred, a record of the meeting should be noted. No record of the meetings at 20th February and 30th September was made at the time and I consider that therefore these meetings are not official warnings.
.......
In their objection Trinity Petroleum allege that after these “warnings” I “did not heed these warnings and written complaints were received from a number of employees subsequent to her final warning and prior to her termination”. This statement is incorrect. It was only after I had submitted my written response to the show cause letter dated 24th November 2010 and attended a meeting on 29th November 2010 that I became aware that there were any written complaints about my behaviour.” 12
[53] In the Applicant’s written response prior to the 29 November 2010, meeting, the Applicant stated in part:
“Each time I have been forced to have discussions with Cathy, they have been at the end of very long and busy shifts where I have been doing the work of the very people complaining about me. I have notified her many times that I am available to come and see her when I am not on shift, and when I am rested, If she should phone I will come and discuss anything with her.
A. Obscene Language and Harassment Of Customers and Staff.
I have already defended myself against these same allegations, twice formally and a few times informally with both my manager and other fellow staff members. I have never sworn in front or fellow staff members and a regular customer once or twice..... For which I have immediately apologised, realised my error, and have had them happily chastise me. A Minor meltdown caught talking to myself out loud. Oops.
I’ve been assured all was O.K. Anything misconstrued cleared up, any misunderstanding cleared up. Any time I have had any misunderstanding with a staff member or customer, I have gone out of my way to apologise and sort it out, making sure the situation has been resolved. I have still not been given specific details of when this occurred, who to or what was supposed to have been said. This has not happened excessively, otherwise you would be sick of speaking to me Sandy and I would’ve been gone by now.
I have never been approached personally by a staff member or customer and told that I have offended or harassed them in any way. I have only been accused of these things by my manager, and threatened by one other staff member who has no proof of the things he has accused me of.
I overheard my manager, “fishing” for complaints with a long term, long standing, and respectable customer. I have worked swap shifts with staff, both console and cafe, and all has been fine. There are two other staff that have received the same amount if not more warnings about the same things as me, one of those staff being far more harassing and abusive to the point of throwing things?
B. Warnings - Verbal Only
When I received each of these warnings, I was notified that ALL other staff had been given the same warning because it was regarding behaviour during shift changeovers and comments in the diary. I was asked to take more care with my mannerisms, personality. And more care with notes left in the work diary. I complied. If I haven’t complied with the directions given in that warning, then neither has anyone else.
.........
I agree, that there has been a complete lack of confidence in me, by my Manager, but not by my employer as a whole. I have, many times, had much confidence shown in me by customers, other staff and the manager having done something above and beyond the normal scope of duties we are expected to perform. E.g sending out the message about a stolen Atherton Transport account card, early Saturday AM three weeks ago, refer ......... I am a good worker and most shifts perform two shifts worth of work. I have a decent reputation amongst most of our regular customers and taxi drivers and suppliers.
I feel I have been treated unfairly, and it has been noticed by both our customers and suppliers. I feel that I have been un-necessarily picked on and picked out, for issues that other staff have been allowed to get away with. I have been humiliated; felt threatened, treated with suspicion, accused of stealing, and offended, myself many times in the last 12 months. I have worked for the company for nearly four years now and have not really had any trouble before. I have been spoken to by Sandy twice, once was just a talking to, not a warning, about my loud and outspoken personality, I constantly keep myself in check. I have a pretty good record I believe. Keeping in mind the records of other still allowed to work for you.” 13
[54] The Respondent took this response into account in the dismissal decision. The Applicant left the final meeting part way through, accordingly not all of the issues were discussed. This was the second occasion she had left such a meeting
Consideration - Section 387
[55] As previously set out, FWA is required to consider the following legislative criteria in s.387 of the Act in determining whether a dismissal was harsh, unjust or unreasonable:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
[56] Central to the determination of this matter is whether a valid reason existed for the termination of the Applicant’s employment. Further to that, whether the Applicant was properly notified of that reason. The Applicant’s conduct in inappropriately using the site diary, her hostile interactions with other staff and Managers and use of unacceptable language in a retail environment provided a valid reason for the dismissal.
[57] The evidence of the Site Manager, Retail Manager and employees was supportive of the valid reason in the dismissal. The Applicant used unacceptable language, was intimidating towards other staff and recorded inflammatory, insubordinate written remarks in the site diary. Whilst it was recognised that the Applicant was frustrated with the request to train another employee, her demeanour was unnecessarily hostile towards the Managers and other employees. The training request was reasonable and no basis for the Applicant’s remarks or allegations were found.
(b) whether the person was notified of that reason;
[58] The Applicant had been warned about her conduct and had signed in acceptance of the warning and, that she was aware of the Employer’s Standard of Conduct. Further the Applicant’s written response to the early warning acknowledged she had engaged in some of the conduct, although she did not concede it was of the level complained of. In this response she confirmed she was aware her job was in jeopardy due to her behaviour.
[59] The Respondent wrote to the Applicant on 24 November 2010 setting out the reasons for the meeting as follows:
“Reason For Final. Warning/Termination
The Company has called this meeting to allow you to defend yourself against the following allegations:
A. Use of obscene language and harassment of fellow employees and customers.
B. Failure to respond to a warning on 20th February 2010 and a final warning on 30th September 2010.
C. Failure to carry out the instructions of your employer.
D. Complete loss of confidence in you by your employer.”
[60] The Applicant from this correspondence, the earlier discussions and warnings was well aware of the issues of conduct, referred to, and was appropriately notified of these and the final meeting.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[61] The Applicant attended meetings where the Respondent’s Management conveyed the concerns to her regarding her behaviour. Whilst the specific names and details of the staff complaints were not communicated to her, she was clearly well aware of the conduct the Respondent was concerned with. She acknowledged this in her evidence.
[62] The Applicant was provided with an opportunity to respond and did so in discussions with the Respondent, as well as in writing. She also responded in writing prior to the final meeting notification, in a show cause letter as referred to.
(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;
[63] The material does not indicate that the Applicant had a support person at the warning meetings. The Applicant should have been offered a support person at these meetings.
[64] The Applicant was invited to have representation at the final meeting if she chose to. This formed part of the correspondence of 24 November 2010.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
[65] The issues relevant to the dismissal predominately related to the Applicant’s conduct rather than to the performance of console operation duties. However the Applicant’s use of unacceptable language and demeanour were an integral part of the manner in which she discharged her duties in a workplace where customers were often present. The Applicant had been warned about the unacceptable conduct and she confirmed she was aware of the nature of the Respondent’s concerns with her behaviour.
(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
[66] In relation to s. 387 (f) and (g), the Respondent does not have dedicated industrial relations or human resources personnel employed to provide advice on the require procedures. The Applicant was informed of the issues with her behaviour. Whilst there were some deficiencies in the process afforded to the Applicant in regard to support persons, the clarity of the complaints, and the documentation of the disciplinary process, overall the Applicant was provided a procedurally fair process.
[67] Importantly with regard to the Applicant’s alleged difficulties with the process the Applicant did not allow for the Respondent to complete the discussions with her at the meeting of 19 November 2010 or the dismissal meeting as she left the meetings prior to their finalisation. The Respondent was unable to undertake the full meetings as planned, which undermines the Applicants criticisms of the meetings.
(h) any other matters that FWA considers relevant.
[68] The Workplace Health and Safety complaint lodged by the Applicant that has been referred to in this complaint did not influence the dismissal. The Applicant stated that the complaint was posted immediately prior to the initial dismissal on 19 November 2010. The Respondent was unaware of the complaint when the dismissal was effected and the termination cannot be taken to have been linked to it.
[69] I have considered the issue of the Applicant’s allegation of comparative differentiation of treatment between herself and other employees regarding the use of the site diary and the unacceptable language. The evidence of the Applicant and other employees did not sustain that the Applicant had been treated differently. The Applicant’s use of language in the site diary and at the workplace, represented a breach of the Company policies and was unacceptable in light of the warnings she had been provided.
Conclusion
[70] The evidence of the managers and the other employees confirmed that the Applicant’s demeanour and actions were intimidating towards the other employees at the worksite. The Applicant had been provided with a series of opportunities to address her offending actions and attitude. The Applicant did not correct her conduct as was open to her; as she set out in her written response to the Respondent. Clear written and verbal warnings had been given. Based on the evidence, the employment relationship was not retrievable, and there was a valid reason for dismissal.
[71] Taking into account all of the circumstances of this application, the procedures used, the evidence and the Applicant’s responses and circumstances, I do not find the termination of the Applicant’s employment to be harsh, unjust or unreasonable. In accordance with this determination, the Applicant’s application pursuant to s. 394 is dismissed. I Order accordingly.
COMMISSIONER
Appearances:
Ms Kelly the Applicant, on her on behalf
Mr Camp of Alan L. Camp & Associates on behalf of the Respondent
Hearing details:
2011
Cairns
6 April.
1 Applicant’s Submissions dated 11th March 2011 Page 4
2 Respondent’s Submission dated 24th March 2011 Page 2
3 Exhibit 7 - Statement of Catherine Bosworth Annexure A
4 Exhibit 2 - Statement of Sandra Hocking Annexure C
5 Exhibit 2 - Statement of Sandra Hocking Annexure C
6 Exhibit 4 - Statement of Sandra Hinder [3]
7 Exhibit 2 - Statement of Sandra Hocking Annexure E
8 Exhibit 5 - Statement of John West [4-8]
9 Exhibit 7 - Statement of Catherine Bosworth [2-5]
10 Exhibit 7 - Statement of Catherine Bosworth [10-11]
11 Exhibit 7 - Statement of Catherine Bosworth [12-15]
12 Applicants Submission dated 11th March 2011 - Page 1 & 2
13 Applicant’s Submissions dated 11th March 2011 Section 3.3
Printed by authority of the Commonwealth Government Printer
<Price code C, PR508257>
0
0