Heather Hollands v Office and Industrial Cleaning Pty Ltd

[2012] FWA 5722

[2012] FWA 5722

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Heather Hollands
v
Office & Industrial Cleaning Pty Ltd
(U2012/6069)

COMMISSIONER WILLIAMS PERTH, 7 AUGUST 2012

Termination of employment.

[1] This matter involves an application made by Ms Heather Hollands (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Office & Industrial Cleaning Pty Ltd (the Respondent).

[2] This matter was the subject of a conciliation conference conducted by a Fair Work Australia Conciliator however the matter was not settled and so was referred to myself for determination.

[3] A notice a listing was sent to the parties advising of the place, date and time for the hearing with attached directions. Those directions required the Applicant to provide a written statement of her evidence and that of any other witnesses and to provide an outline of her submissions and copies of any documents that would be relied upon. The directions required that these were to be provided to Fair Work Australia and the Respondent.

[4] The directions similarly required the Respondent to provide the same information in reply to Fair Work Australia and the Applicant.

[5] In compliance with those directions the Applicant did provide a written statement of her evidence which included her submissions and copies of a number of documents.

[6] The Respondent did not provide any materials in compliance with the directions.

[7] At the hearing of this matter the Applicant was self represented and the Respondent was represented by its Business Manager, Mr Neil Eaton.

Background

[8] The Applicant was employed on 12 July 2010 by the Respondent as a Cleaner to clean the Harvey Shire administration offices. She subsequently took on an additional position cleaning the Harvey Shire town toilets after another cleaner was terminated from her position by the Respondent.

[9] The Applicant was dismissed on 29 February 2012. The letter of termination, signed by Mr Eaton, stated that the reasons for termination were:

“1. Using foul and bad language to our staff and clients’ staff on a continued basis.

2. Failure to perform duties as requested, mainly

a) failure to clean the street bins (contract lost to a contractor).

b) failure to clean dam composting toilets over an extended period.

c) claiming payment for work not done.”

The evidence

[10] Ms Hollands gave evidence under oath. Mr Eaton was invited to cross examine Ms Hollands but chose not to.

[11] The evidence of Ms Hollands was that she was employed to clean the administration offices and then took over another position cleaning the town toilets.

[12] Her supervisor told her she had to clean the eco-toilets at the boat ramp once per week which she cleaned on a Monday.

[13] It has recently been brought to her attention that these toilets were supposed to have been cleaned every Monday, Wednesday and Friday as provided for in the contract between the Respondent and the Shire of Harvey however she was not directed to do this cleaning more than once a week.

[14] She had experienced a series of delays in receiving her pay from the Respondent.

[15] On 3 February 2012 she rang the office in Perth to ask whether her pay was ready and spoke to the Secretary who told her there would be quite a wait for her pay.

[16] She followed this up with an officer of the Shire of Harvey and admits that she did swear once out of frustration in that conversation because she needed the money to fuel her car for work and to live on given she has five children to take care of.

[17] Later that day, on 3 February 2012, Mr Eaton rang her. Ms Hollands says that upon answering the phone Mr Eaton immediately said:

“Heather it’s Neil Eaton, now just shut up you bitch and listen to me, I will not tolerate you ringing my clients swearing at them.”

[18] Ms Hollands replied “Yep, no worries” and she says she took that as a verbal warning and did not swear at anyone again.

[19] She continued on doing her job after this conversation until almost a month later when she was terminated on 29 February 2012.

[20] Ms Hollands evidence was that she had made a complaint to the Australian Tax Office regarding unpaid superannuation and that Mr Eaton had said this would be paid “...when he sells his unit in Perth.”

[21] Ms Hollands also provided two letters from the Respondent regarding her employment. One dated 25 January 2011 which concludes by saying that she is “...a valued employee and we anticipate her employment to continue.” The other letter is dated 11 March 2011 which mentions that her gross payments were equating to $27 999.40 per annum. Both letters were signed by Mr Eaton.

[22] Ms Hollands also provided a copy of one of her timesheets and a previous employee’s timesheet which she says shows she had less hours on her timesheet by comparison which demonstrates that she was not committing “fraud” as was apparently alleged by Mr Eaton during the conciliation conference.

[23] Mr Eaton declined to give sworn evidence but made a number of statements from the bar table. Mr Eaton did not call any other witnesses to give evidence nor provide any documentary material to the Tribunal at the hearing.

[24] Mr Eaton’s statements were that Ms Hollands was dismissed on photographic evidence and him having visited the toilets at the dam on five occasions which demonstrated she had not been cleaning properly. Mr Eaton’s says this demonstrates that the toilets were not being properly cleaned nor had the bins been cleaned for seven or eight weeks and so Ms Hollands was claiming for work not done.

[25] Mr Eaton was invited to provide any materials in support of these statements to the Tribunal but declined to do so saying that he would be pursuing a criminal fraud case against Ms Hollands in another jurisdiction.

[26] Mr Eaton stated that whatever Ms Hollands was seeking she would not get because the business was suffering financial difficulties with turnover 50% down due to losing some contracts and the business has no spare cash.

[27] Mr Eaton said Ms Hollands had used bad language and sworn at the Deputy Principal Health Officer of the Shire of Harvey and his office staff were fearful of speaking to Ms Hollands on the phone because of her bad language.

[28] In reply to these statements Ms Hollands from the bar table said she had sworn only once at the Deputy Principal Health Officer and that she did regularly clean the bins and that the dam toilets had been cleaned properly once a week as she had be instructed.

Consideration

[29] In this case there is a direct conflict between what was said by Ms Hollands and what was said by Mr Eaton.

[30] Ms Hollands gave the Respondent notice of her evidence in advance by providing the Respondent with her witness statement and other documents as required by the directions. Ms Hollands also at the hearing gave evidence under oath and Mr Eaton chose not to cross examine her on her evidence.

[31] Given this background and having observed both Ms Hollands and Mr Eaton in the hearing, where there is a conflict between the evidence Ms Hollands gave under oath 1 and her statements from the bar table and the statements made by Mr Eaton from the bar table I prefer the evidence and statements of Ms Hollands.

[32] That being the case with respect to the issue of foul and bad language I find that Ms Hollands swore on one occasion only. This was as she admitted when she was speaking to the Deputy Principal Health Officer of the Shire of Harvey. I do not accept that she used foul and bad language on a continued basis.

[33] The Respondent appears to assert that Ms Hollands was required to clean the dam composting toilets a number of times a week. However her evidence, which I accept, is that she was only ever directed by the Respondent to clean these toilets once per week which I accept she did.

[34] The Respondent has asserted that Ms Hollands had not cleaned the street bins and whilst having had the opportunity at this hearing has provided nothing to the Tribunal to support this accusation. On balance I accept the statement of Ms Hollands from the bar table that she did regularly clean the street bins 2.

[35] Given my conclusions above that Ms Hollands had been undertaking her cleaning duties with respect to the street bins and the dam composting toilets as directed it is not at all obvious on what basis the Respondent asserts that she had been claiming payment for work not done. The Respondent did have the opportunity to put material before the Tribunal in support of this assertion but has chosen not to do so. Consequently I do not accept that Ms Hollands had been claiming payment from the Respondent for work she had not done.

[36] The Respondent has not provided any evidence to support the serious allegations it has made that the Applicant had defrauded it.

Was the dismissal harsh, unjust or unreasonable?

[37] The criteria for considering whether a dismissal was harsh, unjust or unreasonable are prescribed in section 387 of the Act, which is set out below.

“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.”

[38] I will now consider these criteria in turn.

[39] In this instance the only valid reason possibly for the dismissal of Ms Hollands is the fact that the evidence demonstrates she did swear at the Shire of Harvey’s Deputy Principal Health Officer. Obviously swearing during a conversation with a client of the Respondent is potentially a serious matter. But it is also obvious that not all cases of swearing would warrant an employee being dismissed.

[40] The very limited evidence presented does not allow Fair Work Australia to conclude that this act was a gravely serious offence. There is no evidence as to what Ms Hollands said. The evidence, which I have accepted, is that she did swear on this one occasion only. Without more evidence having been provided to the Tribunal there is not sufficient evidence for me to be satisfied that her conduct on this one occasion amounted to a valid reason for her dismissal.

[41] The Respondent did notify the Applicant of the reasons it had dismissed her for however this was only at the time of dismissal by way of the letter from Mr Eaton. Ms Hollands was not given the opportunity prior to the employer having made its decision to dismiss her to be heard and put her point of view regarding whatever concerns the Respondent had. Even if the employer believed the Applicant had been involved in fraud she should have been provided with the opportunity to respond to these allegations before the employer made the final decision to dismiss her.

[42] There was no refusal by the Respondent to allow Ms Hollands to have a support person present because in fact there were no discussions relating to her dismissal prior to the decision to dismiss being made.

[43] The employer is not a large enterprise and its size and apparent lack of dedicated Human Resource Management specialists or expertise largely explains the deficient procedures followed in effecting the dismissal.

[44] The Applicant had been employed at the time of dismissal for a little over one and a half years.

[45] Considering all of the above matters I am satisfied that the dismissal of Ms Hollands was unjust and unreasonable. Ms Hollands has been unfairly dismissed by the Respondent.

Remedy

[46] There is obviously considerable hostility from Mr Eaton toward Ms Hollands and given the Respondent’s beliefs about Ms Hollands, notwithstanding there has been no evidence provided to support these beliefs, my conclusion is that reinstatement of Ms Hollands would not be appropriate.

[47] It is appropriate then in these circumstances for there to be a payment of compensation ordered.

[48] I will now consider the relevant circumstances of this matter.

[49] The Respondent apparently has some financial difficulties however there is no evidence before me which demonstrates that an order for limited compensation would affect the viability of the enterprise.

[50] The Applicant was employed from July 2010 until February 2012.

[51] Whilst the Respondent has not presented any evidence to support its complaints against the Applicant it is readily apparent from the Respondent’s approach to this matter that it is unlikely that the Applicant’s employment would have continued indefinitely. It is my assessment that the Applicant in all likelihood would not have continued in employment more than another two months had the dismissal not occurred when it did.

[52] Based on the payslips provided by the Respondent it seems the Applicant’s weekly wages were variable but averaged approximately $493 per week.

[53] The Applicant has advised that she has actively sought other employment having been dismissed and indeed gained new employment commencing on approximately 11 June 2012. Since having been dismissed the Applicant has not earned any remuneration until this date.

[54] Considering all of these matters in my view it is appropriate that an order for compensation for 8 weeks wages be made which at the rate of $493 per week amounts to $3944.00 gross.

[55] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

H Hollands on her own behalf.

N Eaton on behalf of the Respondent.

Hearing details:

2012.
Bunbury:
June 26.

 1   Exhibit A1.

 2   Transcript PN104.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR525969>