Irina Belyuga v Monash Health T/A Monash Medical Centre Clayton
[2018] FWC 7431
•5 DECEMBER 2018
| [2018] FWC 7431 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Irina Belyuga
v
Monash Health T/A Monash Medical Centre Clayton
(U2018/2232)
COMMISSIONER HARPER-GREENWELL | MELBOURNE, 5 DECEMBER 2018 |
Application for an unfair dismissal remedy.
[1] Ms Irina Belyuga (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) claiming her employment with Monash Health T/A Monash Medical Centre Clayton (Monash Health) was terminated harshly, unjustly and unreasonably. In accordance with s.396 of the Act I find that the application was made within the period required and that Ms Belyuga was protected from unfair dismissal. Sections 396(c) and (d) of the Act do not apply.
[2] Briefly stated, Ms Irina Belyuga was employed by Monash Health as a registered nurse (RN) 1 until she was summarily dismissed for serious misconduct on 20 February 2018. The reason for her dismissal is an allegation that she smacked an elderly, hearing and sight impaired patient on the back whilst tending to him during her 14 January 2018 shift. Ms Belyuga did not deny smacking the patient however submitted that she did so as he was crushing her injured arm causing her severe pain.
[3] For the reasons set out below I find that the termination of Ms Belyuga was not harsh, unjust or unreasonable and that Ms Belyuga was not unfairly dismissed. Accordingly, the application will be dismissed.
Procedural Background
[4] This matter was conciliated on 28 March 2018 and 1 June 2018 however remained unresolved. The matter was subsequently listed for arbitration before me on 26 July 2018.
[5] I granted permission for Mr Dircks, a paid agent from Just Relations – Consultants, to appear on behalf of Ms Belyuga and Mr Harrington of Counsel to appear on behalf of Monash Health as I was satisfied the matter was sufficiently complex.
[6] Ms Belyuga gave evidence on her own behalf and Mr Fardod Soleimani, a friend of Ms Belyuga, gave evidence on her behalf.
[7] The following witnesses gave evidence on behalf of Monash Health:
• Ms Mei Vadgama, Assistant Nurse Unit Manager (ANUM)
• Ms Betcy Varghese, RN
• Ms Donna Johnson, RN, and
• Ms Neha Bhatnagar, Business Partner - People and Culture
[8] Ms Sue Liersch, Acting Director of Operations, provided a witness statement for the Respondent however was not required by the Applicant for cross examination. Accordingly, her witness statement was entered into evidence without objection.
The Background Facts
[9] Ms Belyuga was an experienced Division 1 RN 2 who had been employed by Monash Health for a period of approximately 17 years.3 Ms Belyuga had been trained in, and was aware of, the Monash Health Code of Conduct and the iCare values which she recalls being accountability, compassion, integrity and excellence.4
[10] In September 2017 Ms Belyuga suffered an injury that she says occurred at work and was subsequently diagnosed with “left tennis elbow” by her doctor. 5 After a period of sick and annual leave Ms Belyuga returned to work on 20 November 2017 and was placed on a return to work plan with reduced hours and modified duties.6
[11] On 14 January 2018 during her shift Ms Belyuga smacked an elderly patient on his back whilst administering a sedation injection. 7 Later that evening, at 6:16pm, Ms Belyuga attended the emergency department for treatment to her wrist.8
[12] The above incident that led to Ms Belyuga’s dismissal was reported to Ms Bhatnagar on 16 January 2018 by the Deputy Director of Operations. 9 On 17 January 2018 Ms Liersch called Ms Belyuga and advised her she had been stood down with pay pending the outcome of an investigation into the allegation that she had slapped a patient during her shift on 14 January 2018.10 Ms Liersch sent an email to which a letter was attached confirming the stand down. The letter also provided that Ms Bhatnagar would be conducting the investigation into the allegations.11
[13] On 23 January 2018 Ms Liersch sent a second letter to Ms Belyuga providing her with further particulars about the allegation made against her. 12 On 25 January 2018 Ms Belyuga and her support person, Mr Soleimani attended a meeting with Ms Bhatnagar and Ms Liersch.13
[14] On 7 February 2018 Ms Liersch emailed Ms Belyuga requesting she provide any further particulars explaining the reasons for her actions. 14 Ms Belyuga responded by email on 8 February 2018 stating (amongst other things) that she had experienced a severe crushing pain to her wrist caused by the patient’s elbow pressing down on her already injured arm and that she had “absolutely panicked”. She stated that she wanted to get her injured arm away from the pain and reacted by smacking the patient on his back, a reaction that was involuntary and without malice.15
[15] On 15 February 2018 Ms Bhatnagar completed her investigation and provided her report to Ms Katherine Lorenz, Executive Director Corporate Services and Governance/Chief Legal Officer. 16 Ms Belyuga received a letter dated 15 February 2018 informing her that the allegation she had slapped a patient had been substantiated and she was invited to provide any further information for consideration at a meeting scheduled for 20 February 2018 or she could provide a written response by that same date. The letter advised Ms Belyuga she could bring a support person to the meeting.17
[16] Ms Wight, Operations Director, Ms Giles and Ms Liersch met with Ms Belyuga on 20 February 2018 to allow her to provide further relevant information for their consideration. Ms Belyuga was informed at this meeting her employment was being terminated. 18 Ms Belyuga received written confirmation of her dismissal on 28 February 2018.19
Evidence
[17] Essentially Ms Belyuga relies on three main arguments as to why there was not a valid reason for her termination of employment. The first of those arguments is that her conduct was not intentional, she had an involuntary reaction as a response to having her wrist crushed by the patient and therefore the dismissal was a disproportionate response. The second is that there was a lack of procedural fairness in that the Respondent did not put to her that the smack was deliberate and finally, that she was suffering from a workplace injury which should have been taken into account.
[18] I turn firstly to the conduct of Ms Belyuga. It is not in contention that Ms Belyuga smacked her patient on the back whilst administering an injection. Ms Belyuga says she is an experienced RN, she works part time and has been practicing for 23 years. 20 Ms Belyuga had been assigned the same four patients to her care on the 13 and 14 January 2018 shifts and the 13 January shift took place without incident. One of the assigned patients was an 87 year old male from a non-English speaking background who she described as deaf, partially blind and suffering from worsening symptoms of dementia (the patient).21 Monash Health described the patient as vulnerable and reliant on expert nursing care.22
[19] Ms Belyuga had difficulty managing the patient during her shift and had called for assistance on multiple occasions by requesting the ANUM on duty call a “code grey”, being an alarm type situation where security comes to the area to assist with a violent patient when there is a risk to others safety. 23 Ms Belyuga is able to call a code grey herself however elected not to do so as she said that she did not have time.24 Ms Belyuga wanted a code grey called when the patient had pushed a table over25 and again when the patient became disorientated and had ended up in a pan room26. The patient was assisted from the pan room by two other nurses who both submit the patient was not aggressive and was easily redirected.27 The ANUM on duty, Ms Vadgama, had refused to call a code grey on each of the occasions as she did not consider the circumstances warranted a code grey. The patient was eventually assessed by two doctors and the decision was made to sedate the patient.28
[20] Ms Belyuga gave her account of the incident that led to her dismissal. She says the patient was seated on a chair that had arm rests to both sides and gaps around the side and back where she could gain access to the patient’s buttocks. The patient was being restrained by four other nurses at the time. She initially had the needle in her left hand whilst she administered the injection into the patient’s buttocks with her right hand. This account of the events is not controversial and was supported by the evidence of each of the Respondent’s witnesses.
[21] After the needle had been inserted Ms Belyuga says she rested her left arm on the arm of the chair. At this point she felt a severe crushing pain in her left wrist. She took her right hand off the syringe and, seeing the patient’s left arm pressing down on her wrist, tried to pull her arm out from under the patient’s arm. Ms Belyuga says she was yelling “my arm my arm” at the time. She submitted that, without realising, she smacked the patient on his back and released her arm. Ms Belyuga says everyone who was assisting her at the time was looking at her in shock and that she was herself in shock at what had occurred. 29 Each of the Respondent’s witnesses concur they were shocked by the events however there is a dispute as to whether Ms Belyuga was in fact yelling out in the way she describes. It is however not in contention that Ms Belyuga, immediately after smacking the patient, informed the other nurses that the patient had hurt her arm. After the event the patient settled down and when his dinner arrived Ms Belyuga fed him.30
[22] Ms Belyuga gave evidence under cross examination that she had become frustrated during her shift when she had told Ms Vadgama that she was having issues with her patient and Ms Vadgama did not help her. 31 Ms Vadgama also reported that Ms Belyuga was showing signs of frustration.32
[23] Ms Belyuga’s evidence was that up until the incident on 14 January 2018 she had followed the Monash Health’s Code of Conduct and complied with the iCare values. 33 During the hearing Ms Belyuga was cross-examined on whether she had complied with the Code of Conduct and iCare values and stated;
“I owned my, you know, what I’ve done, and it’s terrible what I’ve done, you know, but it was an involuntary action”. 34
[24] Ms Belyuga’s evidence during the hearing was that as a trained nurse she had to deal with difficult patients all the time and that she had a disabled child and “if someone smacked him on the back, you know, I would be so upset if something like this happened to him. But I also believe I would assess the situation, what happened. And I deserve to be punished. I’m not saying I do not deserve to be punished, it’s just the severity of punishment…” 35 Ms Belyuga also gave evidence during cross examination that it was not acceptable for an experienced nurse “to slap a patient in any way or shape”, whether the action was voluntary or involuntary, and that the slap was a reaction to her arm being crushed.36
[25] In Ms Belyuga’s written correspondence to Ms Liersch of 20 January 2018 she stated she had requested a code grey to assist with administering the medication prescribed for the patient. 37 Ms Belyuga had the assistance of four other nurses who were restraining the patient holding him down in a chair whilst she administered the injection. Ms Belyuga gave evidence that the patient was seated in a chair whilst she was administering an injection. Ms Belyuga’s evidence was that there was a very small space of approximately 15 or 20cm38 between the chair and where the patient was sitting. Her evidence was that she “did smack [the patient], so I cannot deny it” however due to the small gap between the patient and the chair the smack she gave the patient could not have possibly made the noise the other nurses had reported to have heard. 39
[26] Ms Varghese gave evidence that she had assisted to restrain the patient whilst Ms Belyuga injected the patient. Ms Varghese could not recall exactly what the patient was wearing however she recalls hearing a loud noise which sounded like a slap and Ms Belyuga had shown them her hand which looked red and swollen. 40 Ms Varghese asked two of the other nurses who were in attendance to check to see if any marks had been left on the patient’s back because she was concerned, especially as he was to be moved to the nursing home the next day.41
[27] Ms Vadgama is an ANUM with 40 years of experience. Ms Vadgama made contemporaneous notes about the events that occurred on 14 January 2018. In her notes she records that herself and three other nurses assisted Ms Belyuga in restraining the patient whilst Ms Belyuga injected the patient. She heard a loud slap and looked up at Ms Belyuga, who she describes as angry and upset. Ms Belyuga informed her that the patient had hurt her wrist. 42
[28] Ms Vadgama’s evidence was that Ms Belyuga left the room and returned to feed the patient, at which time she told Ms Vadgama to take her off her shift for the next day as she required stress leave. 43 She led evidence that she had met with Ms Belyuga the day before the incident to check with her if she was okay with her patient allocation and she had indicated she was. Ms Vadgama’s evidence was that Ms Belyuga’s patient allocation was in accordance with her return to work plan patient load.44 She submitted Ms Belyuga was having difficulty dealing with the patient and had requested a code grey be called however at the time she was dealing with other matters and did not call a code grey. Ms Vadgama’s evidence was another nurse had assisted Ms Belyuga with directing the patient who was at the time trying to make his way to the toilet. Ms Vadgama did not think in the circumstances a code grey was warranted and describes the patient as being easy to deescalate and redirect.45 She says the patient is not an aggressive patient and she is not fearful of him, he sometimes waves his stick around because he is blind and he makes his way around by shuffling on the floor on his bottom because that’s where he feels safe.46 She submitted the patient was not a patient who was prone to hurting himself. Ms Vadgama’s evidence was that Ms Belyuga sometimes gets into a “flap” and “panics” and when she has a full patient load she tends to get flustered.47
[29] Ms Donna Johnson is a RN, she led evidence that she assisted in restraining the patient along with 3 other nurses whilst Ms Belyuga administered an injection. Ms Johnson’s evidence was that whilst restraining the patient she heard a loud smacking sound, it sounded to her like someone smacking someone, everyone looked stunned and shocked and she says no one was really sure what had happened. 48
Consideration
Harsh, Unjust Unreasonable
[30] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable:
“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.”
[31] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd.49 McHugh and Gummow JJ explained as follows:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”50
[32] I will now consider each of the matters set out in s.387 of the Act.
Was there a Valid Reason for the dismissal- s.387(a)
[33] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 51 The reason for the dismissal should be “sound, defensible and well founded”52 and should not be “capricious, fanciful, spiteful or prejudiced.”53
[34] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 54 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).55
[35] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.56 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 57
[36] Ms Belyuga submits that it was unlawful for her to be dismissed whilst she had a work related injury. She submitted that an employee with a work related injury is entitled to the benefit of the 12 month obligation period in the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the WIRC Act). 58 Monash Health submitted that the construction of section 103 of the WIRC Act advanced by Ms Belyuga was incorrect as the WIRC Act does not impose a blanket prohibition on dismissal from employment, instead imposing civil penalties where an employer fails to provide a worker suitable employment to the extent it is reasonable to do so during the employment obligation period.59
[37] It is not in contention that Ms Belyuga had suffered from a previous injury and had been on a return to work plan. I do not consider that the WIRC Act prohibits an employer from dismissing an employee however, even if I am incorrect about this, it is a civil penalty matter and as such does not come under the Commission’s jurisdiction.
[38] I now turn to determine whether there was a valid reason for the dismissal related to Ms Belyuga’s capacity or conduct, including the effect on the safety and welfare of others. I have considered the circumstances in which the events occurred and consider a nurse who has over 23 years of experience smacking a patient who had been restrained and was not posing a threat to be a serious matter. It is not a matter in contention that Ms Belyuga did in fact smack a vulnerable patient on the back during the course of her duties. The evidence supports a finding that the patient was a difficult patient who required a high level of care, however he was not a dangerous patient and he did not pose a threat to Ms Belyuga’s immediate health and safety.
[39] I have considered the background and the context in which the events occurred. The patient, without knowing, pressed down on her arm which caused Ms Belyuga pain. It was Ms Belyuga’s own evidence that there are no circumstances in which it is acceptable for a nurse with 23 years of experience to hit a patient, never mind one that is deaf, blind and suffering from dementia. The patient was completely vulnerable and was at the time of the incident being restrained by four other nurses. The smack was not in the form of self-defence, rather Ms Belyuga had the awareness that her wrist was stuck and smacked the patient as a response to her injury. Ms Belyuga became immediately alarmed by her response as did the other nurses in her presence. Ms Belyuga’s evidence was that she immediately knew that she had responded in an inappropriate manner which no doubt caused her more stress and anxiety.
[40] Ms Belyuga was clearly remorseful about her actions, however after carefully considering her evidence and the events that occurred prior to and after the incident, I am not satisfied that her response was simply a “fight or flight” response. Even if the conduct was a “fight or flight” response I am concerned about the capacity of a nurse with such a long history of practice responding to a non-threatening situation in a manner that would put a patient’s wellbeing at risk. As Ms Belyuga rightly stated in her evidence, there are no circumstances in which it is acceptable for a nurse to smack a vulnerable elderly patient who was being restrained by others.
[41] I have also considered that the Australian Health Practitioner Regulation Agency (AHPRA) investigated the incident and that the Board decided, on 31 May 2018, to take no further regulatory action against Ms Belyuga. I note that AHPRA state that they consider that Ms Belyuga’s actions were involuntary and that Ms Belyuga has reflected on the issues which lead to her conduct, however AHPRA’s decision was made in the context of whether Ms Belyuga could continue to be registered. Their decision was made as the Board considered no further regulatory action was needed to keep the public safe however I do not accept that this leads to a conclusion that there was no valid reason for the dismissal. Monash Health had lost trust in Ms Belyuga’s abilities as a nurse due to her breach of her duty of care and considered that they could no longer employ her.
[42] On the basis of the above I am satisfied that there was a valid reason for the dismissal of Ms Belyuga.
Notification of the Valid Reason –s.387(b) and an Opportunity to Respond –s.387(c)
[43] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 60, and in explicit61 and plain and clear terms.62 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[44] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 63
[45] Ms Belyuga submits that she was not notified of the reason for her dismissal because it was not specifically put to her that she had intentionally smacked the patient. I do not find this to be the case. Even if it was not specifically stated in those terms Ms Belyuga had the opportunity to plead her case and put forward a response that her actions were involuntary in an attempt to provide an explanation for her actions. Ms Belyuga was given an opportunity to respond to any reason related to her conduct before the decision was made to terminate her employment.
Unreasonable Refusal of a Support Person – s.387(d)
[46] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.64 With respect to this consideration, the Explanatory Memorandum states:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.65
[47] There was no unreasonable refusal for Ms Belyuga to have a support person present.
Warnings regarding Unsatisfactory Performance – s.387(e)
[48] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.66 Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct.67 The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.68
[49] Ms Belyuga was dismissed for reason of her conduct and not dismissed for unsatisfactory performance.
Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(g)
[50] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.69 Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.70
[51] Monash Health is a reasonably large business and has the benefit of a Human Resources function with employees who have significant practical experience. Monash Health did not content that its size impacted on the procedures it followed in effecting the dismissal. This is a neutral consideration in the analysis of whether the dismissal was unfair.
Other Relevant Matters – s.387(h)
[52] In considering whether it is satisfied that the dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it consider relevant.
[53] It is well accepted that a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for the dismissal. In B, C and D v Australian Postal Corporation 71 the Full Bench stated:
“[41] …That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.
[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:
(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.
(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]
(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]”
[54] Whether a dismissal is harsh, unjust or unreasonable is to be judged objectively, however relevant factors that can be taken into account in determining harshness clearly include matters personal to the employee. Further, the failure of an employee to comply with the policies and procedures of an employer (which may have been found to be a valid reason to dismiss) does not prevent the Commission from finding that the dismissal was harsh, unjust or unreasonable.
[55] Ms Belyuga submitted that as an employee with an extensive record of service with the Respondent she should have been given a warning. She submitted that this contention was supported by the lack of any significant ongoing workplace consequences, her good employment record, the isolated and aberrant nature of the conduct and the alternatives to dismissal which were proportionate to the conduct involved. 72
[56] Ms Belyuga further submitted that she had expressed a great deal of remorse in relation to the incident, both prior and subsequent to her dismissal. 73
[57] Finally, Ms Belyuga submitted that the Respondent had not taken any responsibility for allocating her four high acuity patients when her return to work plan specified that she was to have lower acuity patients. 74 Monash Health submitted that Ms Belyuga’s workload was in accordance with her return to work plan.75
[58] I have considered each of the above circumstances raised by Ms Belyuga however I am not persuaded that the mitigating circumstances outweigh the seriousness of her conduct. Accordingly I do not consider that her dismissal was harsh in those circumstances.
Conclusion
[59] Having considered each of the matters specified in section 387 of the Act, on balance I am satisfied Ms Belyuga’s dismissal was not harsh, unjust or unreasonable. Accordingly, I find that Ms Belyuga was not unfairly dismissed.
[60] The application is therefore dismissed. An order 76 to that effect will be published with this decision.
COMMISSIONER
Appearances:
G. Dircks for the Applicant;
N. Harrington for the Respondent
Hearing details:
2018
Melbourne
July 26
Final written submissions:
Applicant: 20 August 2018
Respondent: 4 September 2018
Applicant reply: 10 September 2018
Printed by authority of the Commonwealth Government Printer
<PR702916>
1 Exhibit A1, 4
2 PN308
3 Exhibit A1
4 PN326
5 Exhibit A1, 9
6 Ibid, 13-14
7 Ibid, 27-31
8 Ibid, 39-40; Exhibit A7
9 Exhibit R6, 3
10 Exhibit A1, 55
11 Witness statement of S. Liersch, 5
12 Ibid, 8
13 Exhibit A1, 61
14 Witness statement of S. Liersch, 10
15 Ibid, 11; SL-7
16 Exhibit R6, 7
17 Exhibit A1, 73; IR5
18 Ibid, 76
19 Ibid, 95; IR6
20 PN298
21 Exhibit A1, 21; PN403-409
22 Respondent’s closing submissions, 3
23 PN455-459; PN1223
24 PN479
25 PN520
26 PN483-487
27 Exhibit R3, 3; PN1181-1182
28 Ibid, 2
29 PN281-289
30 Exhibit A1[32]
31 PN494
32 Exhibit R4
33 PN317-338
34 PN340
35 PN785
36 PN812
37 Witness statement of S. Liersch, SL7
38 PN250
39 PN243
40 Exhibit R2, 3-4
41 PN1099-1011
42 Exhibit R4
43 Ibid.
44 Exhibit R3, 4
45 Ibid, 2-3
46 Ibid, 6
47 Ibid, 7
48 Exhibit R5
49 (1995) 185 CLR 410.
50 Ibid at 465.
51 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.
52 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
53 Ibid
54 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685
55 Ibid.
56 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].
57 Ibid
58 Applicant’s final submissions, 7
59 Respondent’s final submissions, 48-49
60 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]
61 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151
62 Previsic v Australian Quarantine Inspection Services Print Q3730
63 RMIT v Asher (2010) 194 IR 1 at 14-15
64 Fair Work Act 2009 (Cth) s.387(d).
65 Explanatory Memorandum, Fair Work Bill 2009 (Cth) [1542].
66 Fair Work Act (Cth) s.387(e).
67 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
68 Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie[2012] FWA 2 [58].
69 Fair Work Act (Cth) s.387(f).
70 Fair Work Act (Cth) s.387(g).
71 [2013] FWCFB 6191
72 Applicant outline of submissions, 47-50
73 Ibid, 56-57
74 Ibid, 58
75 Exhibit R3, 4
76 PR702917
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8
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