Irene Meadley v Gippsland Waste Services Pty Ltd

[2013] FWC 1034

Note: An appeal pursuant to s.604 (C2013/4065) was lodged against this decision.

[2013] FWC 1034

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Irene Meadley
v
Gippsland Waste Services Pty Ltd
(U2012/9311)

COMMISSIONER RYAN MELBOURNE, 4 APRIL 2013

Termination of employment - allegations of misconduct - no valid reason.

[1] On 2 August 2012 Ms Irene Meadley made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) with respect to her dismissal by the Trustee for Young Agostino Family Trust T/A Gippsland Waste Services on 24 July 2012.

[2] On 20 August 2012 in its response to the application the employer objected to the application on the ground that the application is frivolous and vexatious and has no reasonable prospect of success.

[3] A conciliation was conducted on 24 August 2012 which did not resolve the matter.

[4] On 27 September 2012 the employer filed a Form F4 notifying the Commission of a further jurisdictional objection: the application identified the wrong employer.

[5] I conducted a hearing on 28 November 2012 in relation to this jurisdictional issue. After hearing from the parties in relation to the correct identity of the employer of Ms Meadley it became apparent that Ms Meadley had incorrectly named the employer and that the two persons representing the objector were also the same two persons with effective control over the employer who dismissed Ms Meadley. I decided, pursuant to s.586 of the Act, to amend the application to correctly identify the respondent as Gippsland Waste Services Pty Ltd (GWS). GWS was directed to file a new Form F3.

[6] The respondent’s new Form F3 was filed on 4 December 2012 and identified the jurisdictional objection as frivolous and vexatious and no reasonable prospect of success.

[7] The jurisdictional objection and merits of the application were listed for arbitration before me on 24 and 25 January 2013 in Morwell.

[8] Directions were issued on 7 December 2012 for parties to file and serve material in relation to both the jurisdictional objections and the substantive application.

[9] At the hearing Ms Meadley was represented by Mr James Hooper of Counsel and the company was represented by Mr Greg Petrie, General Manager. Mr Hooper was granted permission to appear.

Preliminary Matters

[10] Ms Meadley was employed by GWS from 29 December 2008 until her dismissal on 24 July 2012. I find that Ms Meadley has been employed by GWS for the more than the minimum employment period specified in s.383 of the Act.

[11] GWS conceded that it is not a small business employer as it had at the time of the dismissal 35 employees. I find that GWS is not a small business employer and that the Small Business Fair Dismissal Code does not apply.

[12] The application in this matter was filed on 2 August 2012. I find that the application was made within the 14 day time limit specified by s.394(2)(a) of the Act.

[13] Both Ms Meadley and GWS agree that the dismissal was not a case of a genuine redundancy and I so find.

[14] Ms Meadley’s employment was covered by the Waste Management Award 2010 and I find that Ms Meadley is a person who is protected from unfair dismissal within the meaning of s.382 of the Act.

[15] GWS concedes that the Respondent dismissed Ms Meadley from her employment and I find that Ms Meadley has been dismissed within the meaning of s.386 of the Act.

Factual Background

[16] Ms Meadley was employed by GWS at its Bairnsdale site for some three and a half years, predominantly as a weigh bridge operator, but also as unload monitor.

[17] In May 2012 Ms Meadley made enquiries of her employer as to her superannuation and leave entitlements. The response from management of GWS did not satisfy Ms Meadley so she sought legal advice on the issue and had her legal representative deal with GWS.

[18] A new roster was posted for employees at the Bairnsdale site on 13 July 2012.

[19] The new roster saw Ms Meadley’s shifts reduced from 7 per fortnight as weigh bridge operator to 4 per fortnight as an unload monitor.

[20] On 17 July 2012 a meeting took place between several employees and Mr Petrie regarding the new rosters.

[21] In the evening of 17 July Ms Meadley, together with a colleague, drafted a letter to Mr Bryan Matthews which called for a meeting with directors of GWS, Mr Rodney Young and Mr Joe Agostino.  1

[22] On the 18 July 2012 Ms Meadley read the letter out to fellow employees and then asked them to sign it if they were happy to. Seventeen employees signed the letter which was then forwarded to Mr Matthews.

[23] On 18 July 2012 Ms Meadley was advised by her supervisor, Mr Bryan Matthews, that she was stood down on full pay pending an investigation into allegations of bullying against her.

[24] Ms Meadley asked Mr Matthews twice on 18 July and once on 20 July to get Mr Petrie to put the details of the allegations to her in writing.

[25] On Friday 20 July 2012 Mr Matthews informed Ms Meadley that a meeting had been arranged for her to attend the Bairnsdale site on Monday 23 July 2012 at 1:00pm.

[26] Ms Meadley did not attend the meeting.

[27] On 25 July 2012 Ms Meadley received a letter summarily terminating her employment for gross misconduct. The letter read as follows:

“On Wednesday 18 July 2012, you were informed that some staff at the Bairnsdale site had raised allegations that they had been subjected to workplace bullying by you.

You were advised that you would be stood down on full pay whilst an investigation was conducted and that the investigation would include you being interviewed and being provided with an opportunity to respond to these allegations.

On Friday 20 July 2012, you were informed by Bryan Matthews that a meeting had been arranged for you to attend the Bairnsdale site on Monday 23 July 2012 at 1:00pm. You were provided with information relating to the allegations and further employment related matters that had arisen during the investigation. You were also advised that you were welcome to have a support person present at this meeting.

You did not attend the meeting as arranged, despite this meeting occurring on a day where you were rostered on to work and were being paid by the company. Your failure to attend this meeting can only be taken as a clear refusal to co-operate in the investigation. As you have not taken the opportunity to attend the meeting and have not provided any responses whatsoever to address these allegations, we can only give consideration to information that is before us and we are left with no alternative but to consider the allegations raised to be proven.

Accordingly, we have decided to terminate your employment on the grounds of gross misconduct. The termination of your employment is effective immediately. Upon the return of the company uniforms in your possession, we will process any outstanding payments in to your usual bank account.

Yours sincerely,

Greg Petrie”

The Appilcant’s Case

[28] It is Ms Meadley’s submission that there is no valid reason for her termination. She asserts her dismissal had nothing to do with allegations of bullying against her but rather was because she agitated in relation to firstly her entitlements, and then in relation to not being consulted about her new roster. Mr Hooper summarised it like this:

“Ms Meadley says her employment was terminated because she in a legitimate fashion agitated some legitimate workplace related issues. Agitating these issues caused effectively, ultimately caused, a fall-out with management of the employer, and in particular with the general manager, who is Mr Petrie. Ms Meadley says as a result of the fall-out in the relationship with Mr Petrie, bullying allegations were effectively fabricated and used as a basis to terminate her employment. Ms Meadley submits the real reasons for the termination of employment were that basically she was seeking a fair go in a workplace for both herself and her colleagues, and in effect that got under management and, in particular, Mr Petrie's skin.

Being a little more particular, Ms Meadley says that the real reasons for termination were basically we put it as one, two and three. Firstly, in 2012 she made enquiries in relation to the accuracy of superannuation payments that had been made to her, and the accuracy of her leave accruals. Secondly and simultaneously, there were roster changes going on in the workplace. Now, Ms Meadley says that she wasn't consulted in relation to those rostered changes. She didn't take that lying down and she agitated the issue that she hadn't been properly consulted. There is also a contention put by Ms Meadley that it was her agitation of the superannuation and leave accrual issues that led to her not being properly consulted in relation to changes to roster.

Thirdly and perhaps most importantly, she was one party involved in arranging for a letter to be signed by nine staff at the Bairnsdale site, which is the vast majority of staff that work at that site, to be sent to the CEO of the organisation, the CEO/director, Mr Agostino. That letter was dated 18 July 2012 and it expressed on behalf of the nine people who signed it, dissatisfaction with the process and consultation that the employer had gone through leading to roster change. It expresses dissatisfaction with the impact of the actual roster changes on the employees. And it also, and I would imagine to Mr Petrie's (indistinct) suggested that they would like someone other than Mr Petrie to be involved in a consultation process going forward as the employees felt that they had not had any satisfaction in relation to questions and issues they had put to Mr Petrie.

As I said, basically in relation to agitating for her entitlements, in relation to agitating for the employer to make sure that her leave accruals were accurate, and agitating with her colleagues for bona fide consultation to take place prior to some roster changes which had really significant impacts on a number of people at the Bairnsdale site, we say ultimately Ms Meadley paid for it with her job. However, as you are aware, Commissioner, the employer has a very different version of events. The employer says that Ms Meadley was terminated for bullying staff members. Ms Meadley says in response to that contention no bullying occurred.”  2

[29] In written submissions filed on Ms Meadley’s behalf, her solicitor submitted:

“As Ms Meadley was not provided with any information or details of the allegations that she faced, her attendance at the proposed investigation meeting on 23 July 2012 can properly be seen as an ambush and that in circumstances where she was not even advised that she could have a support or representative present.”

[30] Leslie Tatnell, a former employee of GWS at Bairnsdale, gave evidence in support of the contention that GWS did not properly consult employees prior to the introduction of the new roster.

Respondent’s Case

[31] GWS contended that Ms Meadley had been told of the details of the allegations of bullying made against her on 20 August 2012 before she was required to attend a meeting to discuss those allegations. Mr Petrie submitted that Ms Meadley had refused a direction to attend a meeting he called as part of the investigation into bullying allegations against her. Mr Petrie submitted that he was therefore left with no alternative but to consider the allegations of bullying against Ms Meadley to be proven which constituted gross misconduct and reason for summary dismissal.

[32] In the termination letter he stated: “we can only give consideration to information that is before us and we are left with no alternative but to consider the allegations raised to be proven.”

[33] I questioned Mr Petrie on the accuracy of his statement in the termination letter which reads:

“You were provided with information relating to the allegations and further employment related matters that had arisen during the investigation.”

[34] Mr Petrie conceded that he considered it no longer an accurate description of what was actually the situation at the time of writing the termination letter.  3

[35] Part of reason for dismissal was that Ms Meadley refused to attend a meeting when she knew the allegations against her and had been instructed to attend.

Consultation regarding new roster

[36] Ms Meadley gave evidence that she was not consulted by management about her new roster.  4

[37] GWS has made differing assertions as to when consultation commenced with staff for a new roster at the Bairnsdale site. In its Form F3, Employer Response to application for an Unfair Dismissal Remedy, GWS stated:

"Between 4 June 2012 and 10 July 2012 the Respondent attended the site on a number of occasions to complete the consultation process with staff, .... "

[38] Then in a letter to Ms Meadley dated 11 July 2012 regarding her new roster, Mr Petrie stated:

“Since Monday, 7 May 2012 the company had been in conversation with staff at the Bairnsdale site as part of a review of rosters for the site.”

[39] Further, Ms Meadley gave uncontested evidence of the position adopted by Mr Petrie at the meeting of 17 July 2012 as follows:

“that because I had taken legal action and refused to be involved in the consultation process, my roster had changed. He later stated after I again asked about consultation, that as I had chosen to take a certain path, my roster is as it is.”  5

[40] Ms Meadley submitted that following the meeting those involved in the meeting expressed frustration at receiving no satisfactory answers to their concerns about the roster changes.

[41] In the evening of 17 July Ms Meadley, together with a colleague, drafted a letter to Mr Bryan Matthews which called for a meeting with directors of GWS, Rodney Young and Joe Agostino.  6

[42] On the 18 July 2012 Ms Meadley read the letter out to fellow employees and then asked them to sign it if they were happy to. Seventeen employees signed the letter which was then forwarded to Mr Matthews.

The allegations of misconduct

[43] Mr Petrie directed Mr Matthews, by an email dated 18 July 2012, as follows:

“As discussed, please attend the Bairnsdale site this afternoon. I need you to advise Irene the company has received allegations of workplace bullying against her which we are now investigating. Irene is to be stood down immediately and is to leave the site. Irene will be interviewed as part of the investigation and we will be in contact with her to advise when this is to occur.

Please do not engage in any further conversation with her or attempt to answer any questions she may have in relation to the specifics of the allegations raised. You can let her know that the allegations have been raised directly with head office and you have not been made aware of any details at this stage.”

[44] Ms Meadley asked Mr Matthews twice on 18 July and once on 20 July to get Mr Petrie to put the details of the allegations to her in writing.

[45] On 20 July 2012 Mr Petrie did put details of the allegations in an email to Mr Matthews. The allegations were put as:

1. 4 staff at the Bairnsdale site have raised allegations of workplace bullying. These complaints relate to staff feeling pressured by Irene to sign a letter distributed by Irene.

2. Company documents and internal communications have allegedly been passed on to an external person by Irene.

3. Irene has contacted our client and requested they intervene and prevent changes to the roster being implement.”

[46] Mr Matthews was under instructions from Mr Petrie to put the allegations to Ms Meadley, as evidenced during cross examination of Mr Matthews by Mr Hooper:

“You didn't ask who the complainants were. Greg asked you to contact Irene and tell her to meet the following Monday at 1 pm?---Yes. Correct.

And you were instructed by Mr Petrie at this point, 20 past 2, Friday afternoon - - -?---Yes.

- - - 20 July, to tell Irene the allegations were in relation to staff feeling pressured and bullied to sign the letter complaining about change to roster, lack of consultation leading to change of roster, et cetera?---Yes.”  7

[47] There is a contest in the evidence of Mr Matthews and the evidence of Ms Meadley as to the conversation which took place between them on the evening of 20 July 2012, which was taped by Ms Meadley.

[48] Mr Matthews argues that in that conversation he tried to read out to Ms Meadley the details of the allegations which were contained in an email from Mr Petrie to Mr Matthews dated 20 July 2012 but that he wasn’t given the opportunity as Ms Meadley cut him off and said that she wasn’t interested in hearing the allegations.  8

[49] Mr Matthews’s evidence directly contradicts the recording of the phone conversation which occurred and of the evidence of Ms Meadley.

[50] GWS alleged that Ms Meadley had doctored the tape recording. Ms Meadley counter alleged that Mr Matthews had lied under oath.

[51] Mr Hooper, for Ms Meadley, in cross examining Mr Matthews:

“You had read this and you knew the content of that email at the time you were speaking with Ms Meadley?---Yes.

You never had any intention of telling her what those allegations were?---Yes, I did.

Did you?---Yes.

Your evidence is that she cut you off?---That's right, yes.

So your evidence is she said to you words to the effect, "I don't want to know about this. I don't want to hear about any allegations. No point talking about it"?

---Yes, well, that's what I believe - - -

She said all those things to you?---Yes.

And your evidence is they don't appear in the taped telephone conversation - - -?

---That's right, yes.

- - - because it has been doctored?---No, I didn't say it had been doctored. I just said I believe it's not the full conversation.”  9

[52] At the conclusion of that hearing on 24 January 2013 the Commission issued an Order to Produce for Telstra to produce the telephone records for a number of telephone numbers in relation to the short time frame when the disputed conversation occurred. The records were made available to both Ms Meadley and GWS but GWS challenged the accuracy of a critical record on the basis that Telstra’s accounting records differed from the records produced to the Commission. The Commission then issued an Order to Attend to Telstra for the purposes of obtaining expert testimony in relation to the records produced in answer to the Order to Produce. A telephone hearing was held on 15 March 2013 to hear from the Telstra expert.

[53] Having had the opportunity to question the expert from Telstra I accept that the telephone records produced to the Commission are accurate. Whilst these records only show the call duration they align with the evidence of Ms Meadley including the recording of the telephone conversation in question.

[54] To be generous to Mr Matthews, it is clear that a good deal of his answers were vague and it would appear that he confuses what should have happened with what actually happened. His evidence as to the content of the telephone conversation is patently wrong! Whilst Mr Matthews was under instructions to tell Ms Meadley the contents of the 3 allegations made against her he did not do so nor did he tell Mr Petrie that he had failed to do so.

[55] Mr Petrie conceded that following an investigation it became evident that there was no basis for allegations 2 and 3 and that there had not been an intent to proceed with disciplinary matters on the basis of those two matters. 10 Despite this knowledge at the time of writing the termination letter, Mr Petrie still included those allegations in the termination letter. Mr Petrie conceded that he should not have made reference in that letter to allegations 2 and 3.11

[56] Mr Petrie also conceded that that the statement in the termination letter which read:

“You were provided with information relating to the allegations and further employment-related matters that had arisen during the investigation”

was not an accurate reflection of the actual situation at the time of writing the termination letter, even though it was an accurate representation of his understanding at the time of writing the termination letter.  12

[57] Mr Petrie cited the valid reason for termination being “the undefended allegations of workplace bullying made by colleagues”.  13

[58] Mr Petrie submitted that he conducted an investigation into the allegations of bullying and formed the view that from a prima facie perspective there actually appeared to be some basis to support these bullying allegations. 14

[59] When Ms Meadley did not attend the meeting on 23 July 2012 Mr Petrie did not consider convening another meeting nor communicating with Ms Meadley to find out why she did not attend the meeting. Rather Mr Petrie moved to dismiss Ms Meadley.

[60] The reason given by Mr Petrie for his conduct is relevant:

“THE COMMISSIONER: Your position in the termination letter that "we're left with no alternative" seems to suggest that you didn't consider that you had any possible alternatives other than relying upon untested statements. Is that how I read it?

MR PETRIE: Commissioner, at the time of writing that letter the company did consider, "Do we provide a further opportunity, a further meeting, where this information can be presented and where, whether it be at that meeting or in a subsequent time, actually gather some responses?" I also looked at the history through what had transpired in terms of communications with Ms Meadley during that unfair dismissal allegation. That was broadly similar, if not identical, to the communications with the superannuation inquiry and again reflected identically in the communications in relation to the roster changes. So I saw a clear pattern there. I really couldn't see any reasonable way where providing a further opportunity would actually change that pattern. With consideration to that, I didn't consider that there was an alternate option.”  15

[61] This is not a reasonable excuse for not affording Ms Meadley procedural fairness. Ms Meadley’s insistence on her right to be represented in dealing with her employer over a workplace dispute and her insistence on being advised of the nature of the allegations made against her before attending a meeting with her employer to discuss such allegations led Mr Petrie to conclude that giving a further opportunity to Ms Meadley to respond to allegations of bullying was futile.

[62] The termination letter stated in part:

“On Friday 20 July 2012, you were informed by Bryan Matthews that a meeting had been arranged for you to attend the Bairnsdale site on Monday 23 July 2012 at 1:00pm. You were provided with information relating to the allegations and further employment related matters that had arisen during the investigation. You were also advised that you were welcome to have a support person present at this meeting.”

[63] It was Ms Meadley’s evidence that no information was provided by Mr Matthews in relation to the allegations, despite her requesting those details on three occasions.

[64] What is telling in this matter is that Mr Petrie was prepared to put the allegations against Ms Meadley in writing but only to send the email containing those allegations to Mr Matthews and not to either Ms Meadley or her legal adviser. The absolute failure of Mr Matthews to tell Ms Meadley the contents of the allegations would not have mattered if Mr Petrie had only copied the email of 20 July 2012 to both Ms Meadly and her legal representative.

Harsh, unjust or unreasonable dismissal s.387

[65] Having dealt with the preliminary matters required to be addressed before a consideration of merit I now turn to s.387 which provides as follows:

“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.”

[66] In considering the criteria in s.387 I am required to consider each criteria which is relevant and only those criteria which are relevant. 16

Valid reason - 387(a)

[67] For a reason for dismissal to be a valid reason it must be “sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason”. 17

[68] From the discussion above it is clear on the evidence that the reason for dismissal namely:

“On Friday 20 July 2012, you were informed by Bryan Matthews that a meeting had been arranged for you to attend the Bairnsdale site on Monday 23 July 2012 at 1:00pm. You were provided with information relating to the allegations and further employment related matters that had arisen during the investigation. You were also advised that you were welcome to have a support person present at this meeting.

You did not attend the meeting as arranged, despite this meeting occurring on a day where you were rostered on to work and were being paid by the company. Your failure to attend this meeting can only be taken as a clear refusal to co-operate in the investigation. As you have not taken the opportunity to attend the meeting and have not provided any responses whatsoever to address these allegations, we can only give consideration to information that is before us and we are left with no alternative but to consider the allegations raised to be proven.

Accordingly, we have decided to terminate your employment on the grounds of gross misconduct.” 18

was not well founded given that Ms Meadley was never given the details of her alleged misconduct. Ms Meadley’s refusal to attend the meeting until she knew what misconduct she was alleged to have committed was reasonable. The conclusion drawn by GWS from Ms Meadley’s failure to attend the meeting on 23 July 2012 was unfounded.

[69] During the proceedings I had the benefit of evidence from two employees who had made complaints against Ms Meadley and which led GWS to accuse Ms Meadley of bullying. The evidence of Mr Wright and Ms Parsons does not support a claim that Ms Meadley bullied them.

[70] Mr Wright said in his witness statement and in examination in chief that he signed the letter prepared by Ms Meadley and addressed to GWS, under duress. I questioned Mr Wright as to what he meant by duress and he explained that:

“Well, the situation being that she had different agendas than what other people had, all right, with her superannuation, holidays, co-workers losing hours, and that was the duress that I was up against.”  19

[71] I further questioned Mr Wright and asked him:

“What made you sign it?---

As I said before, I did not want anything to do with this, to be involved with what was going on. I had had previous conversations with Mr Petrie over rosters, superannuation. We'd actually received a letter from Mr Petrie stating the full breakdown of super and holidays and to me that was totally acceptable. We'd been through a lot of problems, political problems, at work through the superannuation and holidays and all I want to do is go to work and do my job, that's it. I don't need the extra stress of these sort of problems that I have to deal with. I've got enough problems dealing with rubbish. Come on.

From that, it seems that when you say you signed it under duress, you signed it simply to have a peaceful life at work?---Exactly.

Okay?---Sorry, that's layman's terms. I'm not sure - - -

And that's why I want a layman's explanation?---Yes, that's cool.

So you signed it so you could have a peaceful life at work?---Yes.”  20

[72] An extract from the examination in chief of Mr Wright by Mr Petrie is relevant:

“Mr Wright, in paragraph 3 you make reference to when you were handed this letter by Irene you told her you did not want to be involved?

Mr Wright:---Correct.

And also told her that you did not want to attack GWS. Did you get any response from Ms Meadley at that point in time?---I did.

What was that response?---The response was, "If you don't sign the letter or if you don't want to get involved, don't worry about it. I don't care if I get the sack."  21

[73] The evidence of Mr Wright does not paint a picture of Ms Meadley bullying Mr Wright. Rather Mr Wright’s pursuit of a peaceful life at work led him to sign the letter when he didn’t want to and then he immediately rang Mr Petrie to tell him about the letter and that he (Mr Wright) didn’t support the contents of the letter. This is a classic case of running with the foxes and hunting with the hounds.

[74] The evidence of Ms Parsons does not support an allegation of bullying conduct by Ms Meadley. Ms Parsons gave evidence in cross examination that she clearly understood what was meant by the concept of bullying:

“Mr Hooper: Because you don't know what bullying is according to your policy. You think bullying is something physical?---

Ms Parsons: No, I know what bullying in the workplace is. Prior to me starting work with GWS I was doing a course which was to do with workplace bullying and harassment and so on and so forth.”

[75] The evidence of Ms Parsons when considered in light of Ms Parsons knowledge of what bullying is does not support an allegation of bullying conduct by Ms Meadley.

[76] In examination in chief Ms Parsons specifically addressed why she felt pressured by Ms Meadley:

“In paragraph 3 you state, "When Irene Meadley handed me this letter and wanted me to sign it, it was in front of other staff. Irene told me she was unhappy with the roster and had written this letter of complaint and wanted me to sign it." You then go on to say, "I felt uncomfortable and pressured by the way Irene had approached this, so I signed the letter." You also go on to say that, "None of the other staff who were there made me feel this way." How many staff members were there at the time you were handed this letter?---At the time of the letter there was myself, Phil, Dave, Rita. They're the only ones that I can recall.

And you stand by the statement that no other staff made - - -?---No.

- - - you feel uncomfortable or pressured?---Yes.

Can you describe what made you feel uncomfortable and what made you feel pressured?---More the fact that we as a workforce had to work together. By not signing the letter, it then makes it a lot more difficult to work with any individual. It tends to single people out and make them feel like they're not supported and so on and so forth.

Was there anything expressly that may have been stated by Irene Meadley at the time of the letter that made you feel that way; any particular words or phrases that were used?---Not that I can recall on the day.”  22

[77] Yet it is clear from this evidence that Ms Meadley had not used any particular words or phrases that led to Ms Parsons feeling uncomfortable or pressured.

[78] In answer to a question under cross examination Ms Parsons identified that the only anger expressed by Ms Meadley was not directed at any employee.

“She didn't explode with anger or aggression at you, did she?---No, not at me in particular, just at the whole situation I think.”  23

[79] Yet having said this Ms Parsons then alleged that Ms Meadley had intimidated her through the anger expressed by Ms Meadley.

“So you don't think you were bullied. You don't think you were bullied?

---Intimidated, yes, which is still a definition of bullying if you read the next paragraph - no, the third "What is bullying?" on the statement here. Not aggression but anger, yes.”  24

[80] On the day that Ms Meadley was stood down from work because allegations of bullying had been made to GWS Ms Parsons rang Ms Meadley at home:

“Mr Hooper: You rang Ms Meadley on the evening of 18 July, didn't you, at home?--Ms Parsons: -I may have done.

You asked her what was going on in relation to her being stood down, didn't you?

---Yes.

You said that you were unaware of anyone making allegations about her bullying in the workplace, didn't you?---At that particular time, yes, I did.

I think you said you were dumbfounded. That's the case, isn't it?---I could have been. I really would have to try and remember everything I said in the conversation we had that evening.

You should be able to remember that you said you were totally unaware of who would make such allegations. You said that, didn't you?---At the time I was unaware that other people had made this allegation, yes.”  25

[81] After this conversation Ms Parsons also made an allegation against Ms Meadley and while Ms Parsons said that she never used the word ‘bullying’ in making an allegation against Ms Meadley the intent of the allegation was to accuse Ms Meadley of bullying behaviour.

[82] Whereas Mr Wright was running with the foxes and hunting with the hounds, Ms Parsons was very clearly only hunting with the hounds. I am singularly unimpressed by Ms Parsons’ evidence in this matter.

[83] In contrast, I find the evidence of Ms Meadley as to how she conducted herself during the meeting on 18 July 2012 and as to how the other employees present conducted themselves, to be credible.

[84] I am satisfied that on an objective analysis of the evidence before the Commission the allegation of bullying against Ms Meadley has not be made out.

[85] I find that GWS did not have a valid reason for the dismissal of Ms Meadley.

Notified of reason for dismissal and opportunity to respond 387(b) and (c)

[86] These criteria only become relevant if there was a valid reason for the dismissal. In the absence of a valid reason, as is the case in the present matter, these criteria are not relevant.

Support person 387(d)

[87] I am satisfied on the material before me that there was no unreasonable refusal by GWS to allow Ms Meadley to have a support person present to assist at any discussions relating to the dismissal. Having said that the evidence makes clear that the dismissal occurred because Ms Meadley did not attend a meeting on 23 July 2012 and that the allegations of misconduct had not been put to Ms Meadley prior to that meeting. In such a case this criteria is not relevant in this matter.

Warning as to unsatisfactory performance 387(e)

[88] Nothing was put in the proceedings which suggested that Ms Meadley had unsatisfactorily performed her work as a weigh bridge operator or as an unload monitor. This criteria is not relevant in the present matter.

Size of employer’s enterprise 387(f) and Presence of HR specialists or expertise 387(g)

[89] The predecessor provisions of current s.387 (f) and (g) were introduced into the Workplace Relations Act 1996 in August 2001 as ss.170CG(3)(da) and (db) and these provisions were considered by SDP Lacy in Nicoletta Pergaminos v Thian Pty Ltd t/as Glenhuntly Terrace, as follows:

“[10] I note, in the context of this case, the provisions of paragraphs (da) and (db) of s 170CG(3). Those provisions were inserted by amendment to the WR Act with effect 30 August 2001.¹ While the significance of the absence of human resource management specialists or expertise in an undertaking in relation to the procedures for effecting termination of employment are reasonably evident, the same cannot be said of the impact of the size of the employer's undertaking in relation to such procedures. Employees who are about to lose their employment are entitled to expect a fair go, regardless of the size of the employer's undertaking.

[11] In each of paragraphs (da) and (db) the Commission is required to have regard to the degree to which a particular phenomenon would be likely to impact on the termination of employment procedures. Read literally neither paragraph (da) nor paragraph (db) posits as the primary consideration matters of fact. In each case the requirement relates to an assessment of the degree of likelihood of impact. It does not require an assessment of the actual impact of the specified phenomenon, but rather the degree to which it would be likely to impact.

[12] The Minister in his Second Reading Speech on the amending Bill that inserted paragraphs (da) and (db) into s 170CG(3), made the following statement in relation to these new provisions:

"...........

Taking the needs of employers into account

Unfair dismissal claims can be a particular burden upon certain types of businesses, especially small businesses, and in certain circumstances. The Bill contains a number of provisions to assist in reducing such special burdens.

Crucial amongst these is the proposal to require the Commission when determining whether a termination was harsh, unjust or reasonable [sic] to have regard to the size of an employer's operations and the degree to which this would be likely to affect the procedures followed by the employer. This would enable the Commission, for example where a respondent employer is a business which is too small to have a separate human resources function, to determine that different procedures may be reasonable for such a small business compared to larger businesses with greater resources, specialised personnel and greater capacity for more formal procedures. These provisions would not deny employees of smaller businesses a fair go, but would recognise the expectations as to administrative processes need not be the same in smaller businesses as they are in larger businesses.

........."

[13] It seems clear that the intention of paragraph (da) is for the Commission to have regard to the size of the undertaking and to assess whether, in the context of that size, it has a capacity to formulate some formal procedures for effecting termination of employment. This could mean also that an undertaking that has no formal termination of employment procedure may be held to have acted unreasonably in a termination of employment case because its administrative and management structure is of such a magnitude that it ought to have formulated some formal termination of employment procedure. This seems to follow from the requirements of paragraph (db). I adopt this construction in determining this case.”  26

[90] GWS is a medium sized employer employing as it does 135 employees over several sites in Gippsland. An employer of this size should be expected to have in place procedures for fairly dealing with disciplinary matters involving employees and for dismissing employees. GWS does have a Workplace Bullying Policy which is indicative of the capacity of the employer to have procedures in place to deal with dismissal of employees. In the present matter GWS had no HRM expertise in the enterprise.

[91] The evidence in this matter discloses that Mr Petrie, the General Manager for GWS effectively controlled the processes which were applied to Ms Meadley in relation to the matters which were alleged against her. Those processes were flawed in that Mr Petrie did not put the allegations of misconduct directly to Ms Meadley or her legal adviser at the earliest possible opportunity. Whilst failure of the process was caused by Mr Matthews failing to carry out an instruction from Mr Petrie that failure would not have had such a serious consequence if the original process had been better.

[92] The criteria under s.387(f) and (g) are relevant to a consideration of whether the dismissal was harsh, unjust or unreasonable and they weigh in favour of a finding that the dismissal was harsh, unjust or unreasonable.

Other relevant matters 387(h)

[93] I do not consider that there are any other relevant matters to be considered under s.387.

[94] In all of the circumstances and, having taken account of each of the factors set out in s.387, I have reached the conclusion that the termination of Ms Meadley’s employment was harsh, unjust and unreasonable.

Remedy

[95] Ms Meadley sought reinstatement as remedy for her alleged unfair dismissal.

[96] The granting of any remedy for an unfair dismissal is discretionary. Section 390 provides as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

[97] Having considered all of the circumstances of this case I consider that a remedy should be ordered in this matter. The form of remedy provided for in the Act is either reinstatement or compensation with a clear emphasis on reinstatement.

[98] Each of the witnesses for GWS were questioned on their relationship with Ms Meadley in the workplace and outside of the workplace. Ms Meadley also gave evidence about her relationship with her supervisor Mr Matthews and with other staff. Although Mr Petrie opposes reinstatement it is clear that Mr Petrie and Ms Meadley do not work with each other on an ongoing basis and the occasions they do need to interact with each should not adversely impact on the ability of Ms Meadley to work for GWS.

[99] I observe that the reason for Mr Petrie opposing reinstatement is not that there has been an irretrievable breakdown in the relationship between Ms Meadley and GWS but rather that Mr Petrie disagrees with Ms Meadley’s resort to using representation in relation to workplace disputes and Ms Meadley’s insistence on written communications. As Mr Petrie contended in final oral submissions:

“THE COMMISSIONER: So what do you say about reinstatement as a possible remedy or as an inappropriate remedy?

MR PETRIE: Yes, Commissioner, that's something that I've probably formed a stronger view on throughout the course of the last two days in here. My initial feeling was that it would not be appropriate. After hearing the submissions, cross-examining witnesses - all of that sort of stuff - that's probably only strengthened my resolve that I don't believe it would be appropriate. Yes, I make that assessment really on a broad evaluation of all of the things that have been presented over the last two days.

THE COMMISSIONER: Even though Mr Matthews's evidence was that he got along well, worked well, communicated well with Ms Meadley.

MR PETRIE: Yes, Mr Matthews' evidence was that on a day-to-day operational basis when clearly things were going to plan. When conversations were attempting to be had with Ms Meadley that she didn't want to have, Mr Matthews experienced the precise reactions that I was getting: "No, I don't want to talk to you. Put it in writing. I'm not going to respond. My solicitors will handle it;" those sorts of things. It's really those things I think just make a clear difference. If Irene was getting her way - and this is me paraphrasing so I apologise if I cross over any boundaries here - if Irene was getting her way, it was all smooth sailing, everything worked well. When she didn't get her way, the shutters went up and it was, "No, no, no."”  27

[100] I do not consider that reinstatement is inappropriate in this matter and therefore I must not consider compensation as the remedy in this matter.

[101] Reinstatement is dealt with under s.391 which is as follows:

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[102] At the conclusion of the hearing on 24 January 2013 some discussion took place in relation to issues around reinstatement if that was to occur. I note that the issue that was the genesis for the chain of events that led to the dismissal of Ms Meadley was concern over the roster changes being introduced by GWS. These roster changes mean that the pattern of work and actual allocation of duties are not the same now as they may have been prior to the dismissal.

[103] An appropriate order would be to reinstate Ms Meadley into employment with GWS at the Bairnsdale waste facility at her previous rate of pay and on a roster that has Ms Meadley work 7 days in a 14 day cycle. The order may or may not need to specify the actual job title of Ms Meadley. Such an order would be made under s.391(1). I note that in the closing submissions Ms Meadley conceded that because changes had occurred at the Bairnsdale site then Ms Meadley would be prepared to be flexible in relation to actual days to be worked.

[104] I do not intend to issue an order with this decision. Ms Meadley is to prepare a draft order and file it with the Commission and serve it on GWS. Ms Meadley and Respondent are to discuss the draft order to see if an agreed draft can be presented to the Commission. If the terms of an order under s.391(1) for reinstatement cannot be agreed between the parties by close of business on 18 April 2013 I will finalise the order after having heard from the parties at a telephone hearing to be held on 19 April 2013.

[105] I consider it appropriate to make an order under s.391(2) to maintain the continuity of Ms Meadley’s employment and of her continuous service with GWS and such an order will be issued with the order for reinstatement.

[106] I consider it appropriate to make an order under s.391(3) to restore lost pay. I cannot determine the amount of such an order as I do not have all of the information which I am required to take into account under S.391(4). If the parties can agree on the amount of an order under s.391(3) they are to advise me. If the terms of an order under s.391(3) to restore lost pay cannot be agreed between the parties by close of business on 18 April 2013 I will finalise the order after having heard from the parties at a telephone hearing to be held on 19 April 2013.

COMMISSIONER

Appearances:

J. Hooper of counsel for Ms Meadley

G. Petrie for the Respondent

Hearing details:

2012.

Morwell:

November 28

2013.

Morwell:

January 24, 25

March 15

 1   Exhibit A4

 2   Transcript at PN201-PN204

 3   Ibid at PN2580 - PN2581

 4   Ibid at PN252 - PN269

 5   Ibid at PN298

 6   Exhibit A4

 7   Transcript at PN1722 - PN1724

 8   Ibid at PN1861

 9   Ibid at PN1891 - PN1898

 10   Ibid at PN2635

 11   Ibid at PN2671

 12   Ibid at PN2580 - PN2583

 13   Ibid at PN2587

 14   Ibid at PN2605

 15   Ibid at PN2608 - PN2609

 16   Sayer v Melsteel P/L, [2011] FWAFB 7498 at pars [14] and [20] and Chubb Security Australia P/L v Thomas, Print S2679 at pn41

 17   Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 at 373, 7 July 1995, Northrop J.

 18   Exhibit A8

 19   Transcript at PN1049

 20   Ibid at PN1057 - PN1061

 21   Ibid at PN1001 - PN1003

 22   Ibid at PN1119 - PN1123

 23   Ibid at PN1166

 24   Ibid at PN1211

 25   Ibid at PN1775 - PN1779

 26   PR920123, 16 July 2012

 27   Transcript at PN2692 - PN2695

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