Helen Robertson v Imperial Mushrooms Pty Ltd

[2021] FWC 1332

[2021] FWC 1332

FAIR WORK COMMISSION

DECISION

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

Helen Robertson
v
Imperial Mushrooms Pty Ltd
(U2020/11804)

COMMISSIONER CAMBRIDGE SYDNEY, 19 MARCH 2021

Unfair dismissal - no valid reason for dismissal - significant procedural deficiencies - harsh, unjust and unreasonable dismissal - compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 1 September 2020. The application was made by Helen Robertson (the applicant), and the respondent employer has been identified to be Imperial Mushrooms Pty Ltd ABN: 50 093 589 032 (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 20 August 2020. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act. On 8 September 2020, the employer filed a Form F3 employer response document which indicated that no jurisdictional objections were taken against the application.

[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 14 December 2020.

[4] At the Hearing the applicant was represented by Mr T Craven, Industrial Officer from The Australian Workers’ Union (AWU). Mr Craven called the applicant as a witness and he also introduced evidence from one further witness. The employer was represented by Mr J Stanton, solicitor from the Australian Federation of Employers and Industries (AFEI). Mr Stanton adduced evidence on behalf of the employer which was provided by two witnesses.

Factual Background

[5] The applicant had been employed for almost 15 years. The applicant was employed on a full-time basis and she worked as a mushroom picker/harvester. The work of the applicant was governed by the Horticulture Award 2020 [MA000028] (the Award). The applicant was paid $19.49 per hour, which was less than the minimum rate for a level 1 classification in the Award which was $19.84.

[6] The employer operates a mushroom farm in the Greater Western Sydney suburb of Londonderry (the mushroom farm). The employer’s business supplies mushrooms to major Australian supermarket chains and independent grocers. The mushrooms harvested and supplied by the employer are subsequently purchased for public consumption. The employer is not a small business, it has more than 40 employees engaged at the mushroom farm, and together with its associated entities it has approximately 200 permanent employees.

[7] The applicant worked up until February 2020 without any recorded complaint or issue regarding her performance or conduct as an employee. In February 2020, the applicant received a verbal warning for not following workplace policies, rules or procedures. On 9 May 2020, the applicant received an employee counselling/warning form for allegedly not putting mushrooms in the pre-pack but instead into the boxes. On 29 May 2020, the applicant received another employee counselling/warning form for allegedly arguing with her supervisor. On 19 June 2020, the applicant received another employee counselling/warning form because she had sent advice of her absence from work at 7:03 am instead of 6:30 am.

[8] The applicant’s ordinary working hours were from 7:30 am to 6:30 pm. The work that the applicant performed as a mushroom picker involved inter alia, the use of three hand tools namely, a harvesting knife, a blade, and a ring. All mushroom pickers are allocated a numbered knife and blade for the duration of their employment. The applicant was allocated knife number 4. At the completion of each shift, the hand tools that we used by the mushroom pickers had to be washed and returned to wall hangers that have hooks which are numbered locations for the respective numbered knife or blade. There are separate wall hangers for the knives and the blades. The wall hanger for the blades is located some short distance away from the wall hanger for the knives. At the end of each shift the senior supervisor on duty conducts an inventory check to record that all knives and blades are accounted for and have been returned to their respective hooks on the wall hangers.

[9] On Sunday, 16 August 2020, a short time after the shift had finished at 6:30 pm, the senior supervisor on duty conducted an inventory check and noticed that knife number 4 was missing from the number 4 location on the knife wall hanger. The supervisor subsequently telephoned the applicant and enquired about the missing knife number 4. The applicant suggested that she may have mistakenly put her knife into a black tub near where the knives were washed. The knife could not be located despite the applicant and the supervisor using a video call as part of the search process.

[10] The applicant was not rostered to work on the following day, Monday, 17 August 2020, and she did not respond to messages from the employer’s Harvesting Manager, Ms Vy Tran, requesting that she contact the employer regarding the missing knife. As the missing knife could not be located, it potentially represented a contamination risk, and therefore the employer had to engage in a process of checking all of the product that had been prepared by the applicant on the previous day. This process took about 2 to 3 hours and involved isolating and checking the product that the applicant had prepared on the previous day. The missing knife was not located during this checking process, and after the process had been completed, the employer was satisfied that the knife was not located in any of the product that the applicant had prepared. Subsequently this product was released for delivery to customers albeit delayed as a result of the checking process.

[11] On the following day, Tuesday, 18 August 2020, the applicant attended the mushroom farm and commenced her next rostered shift at around 7:30 am. Shortly after commencing her shift, the applicant found her missing knife which had been incorrectly placed on the hook of the blades wall hanger behind where she had hung her blade. After she had found her missing knife, the applicant told the Harvesting Manager, Ms Tran, that the knife had been found. The applicant then proceeded to carry out her mushroom picking duties.

[12] Later that day, at around 3 pm, the applicant was called into a meeting with the employer’s Harvesting Manager Ms Tran, and the employer’s then HR manager, Ms Julia Evans. At this meeting the applicant was asked about the circumstances surrounding the missing knife and its subsequent discovery. Ms Evans investigated the missing knife incident, and she took statements from the applicant, Ms Tran, and several other employees who had some direct involvement in the inventory check which revealed that the knife was missing, and the subsequent attempts to locate it. At the end of the meeting, Ms Evans told the applicant that she was to go home and that she had been stood down from her employment. The applicant was provided with a Notice of Meeting letter that advised that a meeting would be held at 9 am on 20 August regarding the applicant’s employment.

[13] On Thursday, 20 August 2020, the applicant attended the mushroom farm for the scheduled meeting, and she was accompanied by an AWU organiser, Ms Leah Tucker. Ms Evans and Ms Tran were present at this meeting, and shortly after the meeting had commenced Ms Evans handed the applicant a pre-prepared letter of dismissal. Ms Tucker made unsuccessful attempts to persuade Ms Evans to reconsider the decision to dismiss the applicant. The applicant subsequently left the workplace accompanied by Ms Tucker.

[14] The letter of dismissal that was provided to the applicant at the meeting held on 20 August 2020, referred to the incident involving the applicant’s missing knife on 16 August 2020, and the subsequent investigation that the employer had conducted into that incident. The dismissal letter said that the conduct of the applicant in respect to the missing knife incident caused serious and imminent risk to the health and safety of a person, and it caused serious and imminent risk to the reputation, viability, or profitability of the employer’s business, and it also represented the applicant’s failure to carry out a lawful and reasonable instruction. The dismissal letter said that the employer considered that the applicant’s conduct constituted serious misconduct warranting summary dismissal. However, the dismissal letter also advised that the applicant was to be paid 5 weeks in lieu of notice together with any accrued entitlements.

[15] Since the termination of her employment the applicant has unsuccessfully attempted to find other employment. The applicant has not sought reinstatement as a remedy for her alleged unfair dismissal but has instead sought Orders for the payment of monetary compensation.

The Case for the Applicant

[16] Mr Craven made oral submissions during the Hearing, and he referred to documentary submissions filed on behalf of the applicant and which were respectively dated 27 October and 10 December 2020. The submissions made on behalf of the applicant were constructed with reference to the criteria contained in s. 387 of the Act.

[17] Mr Craven submitted that the dismissal of the applicant was a case involving a lack of valid reason. Mr Craven said that the applicant had been dismissed because she had temporarily misplaced a cutting knife that she used in the course of her employment. According to the submissions made by Mr Craven, the dismissal of the applicant for misplacing her knife did not represent a valid reason for dismissal because the employer had treated conduct that was little more than a trivial misdemeanour, to represent serious misconduct.

[18] The submissions made on behalf of the applicant referred to the meaning of serious misconduct contained in Regulation 1.07 of the Fair Work Regulations 2009. In this regard, it was submitted that the applicant’s conduct involving her temporarily misplacing her knife, was not conduct that was wilful or deliberate behaviour that was inconsistent with the continuation of her contract of employment. Further, Mr Craven submitted that the employer had attempted to portray the temporary loss of the knife as a matter of life or death for the business and this was clearly not the case because the employer had a procedure in place which checked the product and ensured that the knife could not have contaminated mushrooms that were sent out to customers.

[19] Mr Craven further submitted that the dismissal of the applicant was an entirely disproportionate response to the applicant’s conduct involving the temporary misplacement of her knife. Consequently, according to the submissions made by Mr Craven, the temporary misplacement of the applicant’s knife could not represent a valid reason for the dismissal of the applicant. Mr Craven noted that the employer appeared to have made no consideration of other disciplinary options which would have been more consistent with the rather trivial misdemeanour involving the applicant temporarily being unable to locate her knife. Mr Craven said that the applicant’s conduct was a mistake, a small mistake, and at best it warranted a warning or a talking to.

[20] Mr Craven also made submissions which criticised the procedure that the employer adopted whereby he asserted that the applicant was not provided with an opportunity to respond to the reasons for her dismissal. Mr Craven submitted that there was no opportunity at the termination meeting held on 20 August 2020, for the applicant or her support person, to provide any responses or explanations in respect to the conduct for which the applicant was dismissed. Further, it was submitted that at the earlier meeting held on 18 August 2020, the applicant was effectively denied the opportunity to have a support person present.

[21] In further submissions made on behalf of the applicant, it was asserted that past performance of the applicant did not appear to be relevant to the employer’s decision to dismiss the applicant. Further, it was submitted that the employer was a sufficiently sized enterprise such that it could reasonably be expected to conduct its industrial and employee relations affairs in a professional manner.

[22] In summary, Mr Craven submitted that the dismissal of the applicant was harsh, unjust and unreasonable. Mr Craven said that the misplacement of the applicant’s knife did not provide valid reason for her dismissal. Further, the applicant’s conduct was simply an accident and could not represent serious misconduct as was asserted by the employer. Mr Craven noted that although the applicant had initially sought a remedy of reinstatement, her position had changed, and she now sought monetary compensation as remedy for her unfair dismissal.

The Case for the Employer

[23] Mr J Stanton, solicitor from the AFEI, presented the case for the employer and he submitted that the dismissal of the applicant was not unfair. Mr Stanton filed a written outline of submissions document dated 26 November 2020, and he supplemented this material with verbal submissions during the Hearing.

[24] The written submissions made on behalf of the employer were constructed with reference to the criteria contained in s. 387 of the Act. It was submitted that the applicant’s conduct in respect to the misplaced knife incident properly established serious misconduct.

[25] In support of this proposition it was submitted that the nature of the employer’s business required it to maintain stringent food safety practices, and these standards and expectations had been clearly conveyed to all employees including the applicant. It was submitted that the applicant’s conduct clearly involved her failure to comply with the established knife and blade procedure, and this created a significant risk of contamination for the employer’s product including the potential ramifications involving loss of contracts with major retailers as well as damaged reputation.

[26] In his oral submissions, Mr Stanton reinforced the assertion that the conduct of the applicant was not a trivial matter and there was significant risk and potential risks to the employer’s business operation as a result of the applicant having misplaced her knife for a period of 37 hours. Mr Stanton submitted that the applicant had clearly failed to follow the established food safety procedure in respect to her knife, and further, she had failed to take corrective steps to rectify her actions. Mr Stanton submitted that there was sound, well-founded, defensible reason for the dismissal of the applicant.

[27] The submissions made by Mr Stanton stressed that the applicant’s conduct had to be considered in the context of the employer’s business operation and the strict food standard requirements that it necessarily had to maintain. Mr Stanton submitted that the validity of the reason for the applicant’s dismissal was sound and had been made out, particularly taking into account the employer’s business which was highly concerned with food safety.

[28] The submissions made on behalf of the employer also asserted that the applicant had been notified of the reason for her dismissal during the meeting held with her and her Union representative on 20 August 2020. It was noted that the dismissal had been confirmed in writing in a letter dated 20 August 2020. It was further submitted that the applicant had been interviewed about her conduct in respect to the misplaced knife incident at the meeting with Ms Evans held on 18 August 2020. It was noted that at this meeting the applicant provided a written statement. Further, it was submitted that the applicant was given an opportunity to have a support person present at the meeting on 18 August, and she did have a support person present at the meeting held on 20 August 2020.

[29] It was also submitted that although the applicant was dismissed for reason of her serious misconduct, the employer was entitled to have regard for the earlier prior warnings which the applicant had countersigned. The submissions made on behalf of the employer acknowledged that it had a structured and documented approach to its management of employment related matters, and it had been assisted by its Human Resource Manager, Ms Evans.

[30] The employer’s submissions also noted that although it was not obliged to, the employer had paid the applicant 5 weeks’ notice. Further, it was submitted that the suggestion of some alternative disciplinary response was unrealistic because the applicant had received written and verbal warnings in the months leading up to the misplaced knife incident of 16 August 2020.

[31] In summary, Mr Stanton submitted that there was a valid reason for the dismissal of the applicant and there was no basis to accept that the employer’s concerns involved trivial issues in the context of a business that was concerned with stringent food safety requirements. Consequently, the employer submitted that the dismissal of the applicant was not unfair, and she had been accorded “a fair go all round”. Mr Stanton submitted that the application for unfair dismissal remedy should be dismissed.

Consideration

[32] The unfair dismissal provisions of the Act relevantly include s. 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. Section 385 is in the following terms:

“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.”

[33] In this case, there was no dispute that the applicant had been dismissed from her employment, the employer was not a small business, and there was no suggestion that the dismissal of the applicant involved redundancy. Consequently the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.

[34] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. Section 387 of the Act is in the following terms:

“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.”

S. 387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct

[35] The reason for the dismissal of the applicant was stated by the employer in the termination of employment letter dated 20 August 2020. The termination of employment letter mentioned, inter alia, that the conduct of the applicant in respect to the missing knife on the 16^th of August 2020 had:

•  caused a serious and imminent risk to the health or safety of a person

•  caused a serious and imminent risk to the reputation, viability or profitability of Imperial Mushrooms business

•  you did not to [sic] carry out a lawful and reasonable instruction that was consistent with your contract of employment, and in the circumstances your continued employment during the notice period would be unreasonable.

[36] The employer considered that the applicant’s conduct in respect to the missing knife incident constituted serious misconduct that warranted her summary dismissal. It appeared that the wording of the first two bullet points in the termination of employment letter was extracted from Regulation 1.07 (2) (b) of the Fair Work Regulations 2009 (the Regulations). Further, it appeared that much of the wording in the third bullet point was extracted from Regulation 1.07 (3) (c) of the Regulations.

[37] The employer’s utilisation of particular wording found in Regulation 1.07 did not include any adoption and/or adaptation of the terms of Regulation 1.07 (2) (a) which mentions “wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment”. Consequently, there was strong support to confirm that the employer recognised that the missing knife incident did not involve wilful or deliberate misconduct on the part of the applicant. It follows therefore that the employer found that the unintentional, negligent action of the applicant represented serious misconduct.

[38] There are circumstances where the unintentional, negligent action of an employee may constitute serious misconduct in an employment context. However, such circumstances are rare, and would usually involve gross negligence that resulted in manifest, significant harm, or potential for such significant harm, to a person, or to the employer’s business. There are also circumstances where the negligent action of the employee may be intentional, and in such cases, where deliberate carelessness may have been established, a finding of serious misconduct would be more easily achieved. In circumstances where the unintentional, negligent action of the employee did not cause serious and imminent risk of harm to either a person or the employer’s business, a finding of serious misconduct could not be properly made.

[39] An objective and careful examination of all of the evidence has established that the missing knife incident involved the unintentional, negligent action of the applicant. The applicant forgot to ensure that her knife was returned to its allocated number 4 position on the knife wall hanger. However, there was no evidence upon which to establish that the absence of knife number 4 from its allocated place on the knife wall hanger, caused serious and imminent risk of harm to a person, or that it caused serious and imminent risk to the reputation, viability, or profitability of the employer’s business.

[40] The daily knife and blade checking and recording system was part of the necessary food safety protocols adopted by the employer and which had been diligently observed by the applicant during her many years of employment. The knife/blade recording system ensured that the employer was alerted if any knife or blade was missing at the end of a shift. Once alerted that a knife was missing, the employer was then able to implement measures that ensured that there was no serious and imminent risk of harm to a person, or to its reputation, viability, or profitability.

[41] Consequently, the unintentional, negligent action of the applicant caused the employer to implement actions which ensured that there was no serious and imminent risk of harm to a person, or to its reputation, viability, or profitability of its business. The applicant’s unintentional, negligent action therefore caused additional cost and inconvenience for the employer rather than serious and imminent risk of harm to either a person or the employer’s business operation. Thus, the causational link between the applicant’s unintentional, negligent action and any actual serious and imminent risk of harm was broken. In reality, the unintentional, negligent action of the applicant created a potential for serious and imminent risk of harm, but intervention ensured that no actual serious and imminent risk of harm occurred.

[42] In many respects, the employer’s food safety management system worked as it was intended. The checking and inventory system alerted the employer that a knife (number 4) was missing, in the absence of any immediate locating of the knife, the product that had been prepared by the applicant (using knife number 4) was then thoroughly checked, and as no knife was located in that product, it could then be released for sale, albeit delayed.

[43] The evidence disclosed one clear deficiency with the knife/blade checking and inventory system as it was implemented on Sunday, 16 August 2020. According to the evidence provided by Ms Tran, the employer’s Harvesting Manager, the knife/blade checking and inventory was supposed to be conducted by the relevant supervisors before employees were permitted to leave the workplace at the completion of their shift. Relevantly, Ms Tran stated: “…normally, if I can’t find knife, I can’t go home.” 1

[44] Ms Tran confirmed this evidence during cross examination when she provided the following testimony:

“If there is a knife missing, would you stop that person from going home? --- Yes, because if the knife missing and then we have to contact to the lady straight away. I go around all the room to check if they’re still here or there catching the bus we have to go to the bus or we have to call the bus driver come back. Or if they’re driving you have to call them.

But you know on this day the applicant left, so she was allowed to leave even though her knife was missing. Is that correct? --- No, because that time the supervisor they didn’t check the knife yet but the lady already left. Helen already left.” 2

[45] This evidence was important for two reasons. Firstly, it was clear that on Sunday, 16 August 2020, the applicant had left the workplace and she had reached her home before the relevant supervisor(s) conducted the knife/blade checking and inventory upon which it was discovered that knife number 4 was missing. Secondly, Ms Tran described the activities that she had undertaken when a knife was discovered to be missing, and this confirmed that although not a frequent event, there were other occasions when knives had gone missing. There was no evidence presented by the employer that on the other occasions when knives had gone missing, the relevant individual was subsequently dismissed.

[46] It was also noteworthy that, although the applicant could properly be held accountable for her unintentional, negligent action, there was no evidence that the employer considered that one or more of the relevant supervisors may have been responsible for not conducting the knife/blade checking and inventory system at a time before the applicant left the workplace on Sunday, 16 August 2020. Rather than adopt an objective, comprehensive and fair-minded approach to the missing knife incident, the employer focused all blame upon the applicant.

[47] The absence of a fair and objective assessment of all of the circumstances surrounding the missing knife incident, was reflected by the employer’s erroneous mischaracterisation of the applicant’s unintentional, negligent action to represent serious misconduct. Consequently, the reason for the applicant’s dismissal as was found by the employer, could not be established to be sound, well-founded and defensible.

[48] In addition to the reasons for dismissal stated in the termination of employment letter, the employer also relied upon what it considered to be the applicant’s failure to respond to attempts to contact her on Monday, 17 August 2020. The employer’s Chief Operating Officer, Ms Freeman, considered that if the applicant had genuinely cared and took responsibility for her actions, she would have returned to the workplace early on 17 August 2020, to help find her missing knife. Ms Freeman believed that the applicant ignored the attempts to contact her in circumstances where she was aware of the seriousness of the situation and therefore, she lacked commitment to food safety. This lack of commitment to food safety was asserted to be an additional basis upon which the employer formed the view that the applicant’s conduct in respect to the missing knife incident represented serious misconduct.

[49] Although an employer may consider it to be desirable for an employee to engage in communications with the employer or voluntarily attend the workplace at times when that employee was not rostered for work, it cannot impose an obligation on its employees to devote their non-working time towards the interests of the employer. On any realistic and objective contemplation, it would be unreasonable for an employer to dismiss an employee because that employee, when not rostered for work, was not prepared to engage in activities that may have advanced the interests of the employer.

[50] Further, although the applicant clearly appreciated the seriousness of having misplaced her knife, given her lengthy experience as a mushroom picker, she would have logically presumed that if the knife had not been found on the following day, then the employer would have implemented the process of checking all of the product that she had picked on the previous day. This is of course what did occur, and when the applicant returned for her next rostered shift on Tuesday, 18 August 2020, she was informed that her knife had not been found and the employer had been required to isolate all of her product to ensure that the knife was not in any of that product. The employer was rightly aggrieved at having to conduct the product check, but the misconduct of the applicant could not properly be extended to include her failure to communicate with the employer or attend the workplace on her rostered day off.

[51] There was also evidence of a further issue concerning the reasons for the dismissal of the applicant and which appeared to have a connection with the applicant’s failure to respond to the employer’s communications on Monday, 17 August 2020. The applicant had a long, unblemished work record which contrasted strangely with the disciplinary warnings that she received on 8 February, 9 May, 29 May and 19 June 2020. It is unusual that an employee might work for over 14 years without any recorded complaint and then suddenly receive four disciplinary warnings in less than six months. It appeared that what had been a long, harmonious work relationship was encountering difficulties and it would be understandable that the applicant’s level of commitment to “go over and above the call of duty” may have waned as a result of these recent difficulties.

[52] The recent difficulties with the applicant’s employment relationship appeared to have some connection with a workplace injury. The evidence of Ms Tran provided a clear inference that the work restrictions arising from the applicant’s workplace injury created some resentment, at least on the part of Ms Tran. Relevantly, Ms Tran’s statement included the following:

“… I am aware of Helen’s bad back. I am the one to allocate her work every day and I never let her do anything that impacted her back. She has limited duty than others.

37. We have a performance target for everyone who works here except Helen. Target how many kilogram you pick per hour. With Helen, we don’t apply that on her case. She can do whatever she want.” 3

[53] It may have been purely coincidental, but at least in appearance, the recent, dramatic alteration to the applicant’s disciplinary record seemed to have some connection with restrictions placed on her work capacity and performance as a result of a workplace injury.

[54] Consequently, a careful examination of both the stated reasons relied upon by the employer for the applicant’s dismissal and those reasons which the employer subsequently sought to rely upon, and which were asserted to have constituted serious misconduct in respect to the missing knife incident of 16 August 2020, could not represent valid reason for the dismissal of the applicant. In addition, other reasons for dismissal which can be reasonably inferred, provide further confirmation of the absence of any sound, defensible or well-founded reason for the dismissal of the applicant.

S. 387 (b) - Notification of Reason for Dismissal

[55] The employer provided notification of dismissal by way of the termination of employment letter that was handed to the applicant at the meeting held on 20 August 2020. The termination of employment letter had been prepared prior to the commencement of the meeting on 20 August 2020.

S. 387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[56] The notification of the reason for dismissal was provided in a manner which deprived the applicant of any opportunity to respond before the decision to dismiss was taken.

[57] There was contested evidence about whether the termination of employment letter was given to the applicant shortly after the commencement of the meeting on 20 August 2020, or whether there was some discussion and opportunity for the applicant and/or her support person Ms Tucker, to make representations on behalf of the applicant. Ms Tucker provided evidence that the termination of employment letter was given to the applicant very shortly after the commencement of the meeting, and before she had an opportunity to open her notebook. Further, Ms Tucker said that the meeting lasted less than 10 minutes whilst Ms Tran said the meeting lasted about 30 minutes.

[58] The Commission has adopted a preference for the evidence provided by Ms Tucker wherever that differed from the evidence that was provided by Ms Tran. The evidence that was provided by Ms Tran suffered from certain inconsistencies and incongruities which in many respects rendered some of her testimony to be unbelievable.

[59] As an example of one of these inconsistencies, paragraph 22 of Ms Tran’s witness statement asserted that on the morning of 18 August 2020, Ms Tran discovered knife number 4 in its respective spot on the knife wall hanger and that Ms Tran then went to the applicant’s “room” to let her know that she had found her knife. This recollection of the discovery of the knife on the morning of 18 August was different from the recorded statement of Ms Tran that was made by Ms Evans during her investigation on 18 August 2020. Ms Evans recorded that Ms Tran had said: “Helen Knife was not found. On Tuesday morning Helen told me she had found her knife with her blade and ring.” 4

[60] Consequently, the meeting held on 20 August 2020, was a perfunctory, mechanical event which involved the applicant in the presence of her support person, being told of her dismissal and then provided with the pre-prepared termination of employment letter. Even if there had been some opportunity for the applicant to have been heard at the meeting held on 20 August 2020, there was no purpose served in hearing from the applicant because the decision to dismiss the applicant had already been made. As was identified during the course of the Hearing, the meeting did not provide any opportunity to hear from the applicant, and the process that the employer adopted was akin to the Commission preparing the unfair dismissal Decision before conducting a Hearing.

S. 387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[61] It was clear that the applicant was permitted and indeed did bring, a support person to the meeting that occurred on Thursday, 20 August 2020. However, this meeting on 20 August 2020, did not represent discussions in connection with the dismissal of the applicant because the decision to dismiss had already been taken.

[62] There was some conflicting evidence about whether the applicant was provided with an opportunity to have a support person present during the meeting that was held on 18 August 2020. In respect to this conflicting evidence, the Commission has preferred the evidence that was provided by the applicant that she was simply summonsed to the meeting on 18 August 2020, and she was not provided with a proper opportunity to arrange assistance from a support person at that meeting.

S. 387 (e) - Warning about Unsatisfactory Performance

[63] The applicant was not dismissed for unsatisfactory performance but rather her alleged serious misconduct associated with the missing knife incident of 16 August 2020.

S. 387 (f) - Size of Enterprise Likely to Impact on Procedures

[64] The employer is a business operation of some significant size, and it would be expected to provide an appropriate level of professionalism and sophistication with its employment related procedures.

S. 387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[65] There was evidence that the employer had dedicated human resource management specialists. Consequently, it was somewhat surprising that the employer implemented an erroneous procedure that avoided any proper show cause process. Further, it was unfortunate that the employer conducted a severely flawed investigation upon which it drew hasty conclusions which involved the predetermined dismissal of the applicant.

S. 387 (h) - Other Relevant Matters

[66] The employer gave little or no consideration to disciplinary measures other than dismissal of the applicant. The applicant made an unintended but serious mistake, and her unintentional, negligent action could have appropriately resulted in some form of disciplinary action other than dismissal. The dismissal of the applicant, which was mischaracterised as serious misconduct, meant that as a disciplinary measure, dismissal was grossly disproportionate to the level and nature of the misconduct of the applicant.

Conclusion

[67] The determination of this unfair dismissal claim has firstly focused upon the issue of whether there was a valid reason for the dismissal of the applicant. The applicant was dismissed for reason of serious misconduct that the employer found in respect to the missing knife incident of 16 August 2020. The serious misconduct was said to have involved both the unintentional, negligent action of not returning the knife to its respective hook, and the applicant’s failure to provide further assistance to the employer in the search for the knife on her rostered day off.

[68] Following a careful examination of all of the evidence concerning the reasons for the dismissal of the applicant, it was clear that the employer mischaracterised the conduct of the applicant to be serious misconduct in circumstances where no such finding could be properly made. The actions of the applicant involved unintentional negligence for which some form of disciplinary action may have been justified. However, the disciplinary action of dismissal was grossly disproportionate to the conduct of the applicant which, when properly contemplated, represented an unfortunate but serious mistake. Therefore, the reasons for the dismissal of the applicant were not sound, defensible, or well-founded. There was not a valid reason for the dismissal of the applicant that related to her capacity or conduct.

[69] The employer adopted a severely flawed procedure when dealing with its determination to dismiss the applicant. The employer did not provide the applicant with a proper opportunity to have a support person present during the meeting that was held on 18 August 2020. The employer made the decision to dismiss the applicant without first providing the applicant with an opportunity to show cause as to why her employment should not be terminated. The pre-prepared termination of employment letter that was handed to the applicant shortly after the commencement of the meeting that was held on 20 August 2020, demonstrated that the decision to dismiss had been taken without the applicant being afforded an opportunity to plead her case. The dismissal of the applicant was harsh, unjust, and unreasonable.

[70] In summary, the dismissal of the applicant was without valid reason involving established misconduct or capacity inadequacy. Further, the dismissal involved an entirely unjust and unreasonable process including the absence of any opportunity for the applicant to be heard before the decision to dismiss was made. Consequently, upon analysis of the various factors that are identified in s. 387 of the Act, an objective and balanced evaluation of all of the relevant circumstances has provided compelling basis to establish that the dismissal of the applicant was harsh, unjust and unreasonable. Therefore, the applicant’s claim for unfair dismissal remedy has been established.

Remedy

[71] The applicant has not sought reinstatement as a remedy for her unfair dismissal. In the circumstances, particularly as the employment relationship was severely damaged by the conduct of the employer surrounding the dismissal, reinstatement would not be an appropriate remedy.

[72] In the circumstances, the Commission has decided that compensation would be an appropriate remedy for the applicant’s unfair dismissal, and consideration has been made of the factors which involve the quantification of any amount of compensation.

[73] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. The question of compensation generally, and the basis upon which to determine the specific quantum of compensation that should be Ordered, has been approached having regard for the guidance that can be identified in the Full Bench Decisions of, inter alia; Sprigg v Paul’s Licensed Festival Supermarket 5 (Sprigg); Smith and Ors v Moore Paragon Australia Ltd 6 and more recently, the cases of; McCulloch v Calvary Health Care Adelaide7; Balaclava Pastoral Co Pty Ltd v Nurcombe;8 and Hanson Construction Materials v Pericich9(Pericich).

[74] Firstly, the Commission confirms that an Order for payment of compensation to the applicant will be made against the respondent employer in lieu of the reinstatement of the applicant.

[75] Secondly, in determining the amount of compensation that is to be Ordered, the Commission has taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[76] There was no evidence provided which established that an Order of compensation would impact on the viability of the employer’s enterprise.

[77] The applicant had been employed for a period of almost 15 years. The applicant would have been likely to have received remuneration of approximately $740.00 per week if she had not been dismissed.

[78] As a long serving employee who had until very recently, an unblemished work record, the applicant would have been likely to have continued in employment for some considerable period. Consequently, the Commission has determined that the employment of the applicant, would have been likely to have continued for a further 5 years after her unfair dismissal.

[79] For the purposes of calculation of remuneration that the applicant would have received or would have been likely to receive if she had not been dismissed, it has been considered that the employment of the applicant would have continued for a further 5 years. Therefore, the total remuneration that the applicant would have received in the notional period of 5 years following dismissal amounted to a figure of $192,400.00.

[80] The total amount of remuneration received in alternative employment, as identified, and that which may be reasonably likely to be earned between dismissal and the making of the Order for compensation, has been calculated to $0.00.

[81] Thirdly, in this instance there was only unintentional, negligent misconduct of the applicant, and consequently the Commission has decided to make no reduction to the amount of compensation to be provided to the applicant on account of any established misconduct.

[82] Fourthly, the amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.

[83] Fifthly, the amount Ordered has been reduced so as not to exceed the compensation cap as prescribed by s. 392 (5) of the Act.

[84] Consequently, for the reasons outlined above, taking into account all of the circumstances of the case, and having cognisance so as not to apply the approach taken in the Decision in Sprigg in a rigid, determinative manner, as was cautioned in the Decision in Pericich, the Commission has decided that the amount of compensation to be provided to the applicant should be a gross figure of $19,240.00.

[85] Accordingly, separate Orders [PR727699] providing for unfair dismissal remedy in these terms will be issued.

COMMISSIONER

Appearances:

Mr T Craven from the Australian Workers’ Unionappeared for the applicant.

Mr J Stantonfrom the Australian Federation of Employers and Industries appeared for the employer.

Hearing details:

2020.
Sydney:
December, 14.

Printed by authority of the Commonwealth Government Printer

<PR727698>

 1   Exhibit 4 - paragraph 38.

 2   Transcript @ PN1006 and PN1007.

 3   Exhibit 4 - paragraphs 36 and 37.

 4   Exhibit 5 - Annexure H.

 5 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 6   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

 7   John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.

 8   Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, (Hatcher VP, Gostencnik DP and Cribb C) [2017] FWCFB 429.

 9   Hanson Construction Materials Pty Ltd v Darren Pericich, (Ross P, Masson DP and Lee C), [2018] FWCFB 5960.