Iris Curtis v Oxford Dental Practice

[2014] FWC 6779

[2014] FWC 6779

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Iris Curtis
v
Oxford Dental Practice
(U2014/10725)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 29 SEPTEMBER 2014

Application for relief from unfair dismissal - small business fair dismissal code - harsh and unjust - compensation.

[1] On 9 July 2014 Mrs Curtis lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with the Oxford Dental Practice (Oxford).

[2] Mrs Curtis' application was not resolved through the conciliation process and was referred to me for determination.

[3] Mr Snow, of counsel sought a grant of permission to represent Oxford. This was opposed by Mrs Curtis. In a telephone hearing on 27 August 2014 I refused that request. My decision in that respect was informed by the nature of the issues involved in this matter and the extent to which Dr Goh, the Principal of Oxford has a law degree. Having considered each of the factors in s.596(2), I was not persuaded that the complexity of the matter was such that legal representation would assist in the efficient consideration of the matter. Further, I was not satisfied the Dr Goh was unable to represent himself in this matter. Finally, I considered that it would not be unfair on Dr Goh to require him to represent himself.

[4] The application was the subject of a determinative conference on 16 September 2014. Mrs Curtis and Dr Goh participated in this conference. At the outset I recommended that they both give further consideration to the possibility of a negotiated settlement. Mrs Curtis does not seek reinstatement and, in any event the relationship between her and Dr Goh is categorically and irrevocably destroyed. I indicated that, on the material before me, it was surprising that relationship had lasted as long as it did and it was difficult to see how it could have lasted much longer in any event. Mrs Curtis is pursuing an action for underpayment in the Court and the parties seem destined to spend a substantial amount of time, money and personal angst in circumstances where the net benefit may well be mostly illusionary. The parties subsequently advised me that they were unable to reach an agreed position and the matter proceeded accordingly.

[5] There is no dispute that Mrs Curtis is a person protected from unfair dismissal and that her application was lodged within the statutory time limit. Her dismissal was not a redundancy. Oxford is a small business such that, if the Small Business Fair Dismissal Code was followed, Mrs Curtis' dismissal cannot be unfair.

[6] Consequently I have initially considered the material before me in the context of that Code.

[7] The background to the application is that Oxford is a dental practice. Mrs Curtis worked for Oxford as an Administration Manager from 11 April 2012. She was engaged under an employment contract which was renewed on an annual basis although the mutual acceptance of that contract by Oxford and its final form is disputed.

[8] Mrs Curtis agrees that she was given warnings on a number of occasions. She disputes the basis for these warnings and asserts that they were dated on various occasions in November 2012, May 2014 and June 2014 but not given to her until substantially later and, in one case, after the termination of her employment in July 2014. Her employment was terminated on 26 June 2014. She was given written advice of that dismissal.

[9] Mrs Curtis asserts that she was not given any forewarning of the termination of her employment and that there was no valid reason for it. She asserts that she had no opportunity to respond or access a support person and that there was no basis for the criticisms of her.

[10] Oxford asserts that there were performance and conduct issues on the part of Mrs Curtis and that she was given warnings in relation to these issues. Further, that it had an appropriate basis for the termination of her employment and implemented this consistent with the Small Business Fair Dismissal Code. Oxford further assert that, since the termination of Mrs Curtis’ employment it has become aware of other instances of misconduct.

[11] Mrs Curtis' evidence went to her employment experience and assertions about her work performance and behaviour. She confirmed that, by the time of the termination of her employment, her relationship with Dr Goh was "toxic".

[12] Dr Goh's evidence went to his concerns about Mrs Curtis' work, the warnings given to her and the basis for, and manner of, the termination of her employment. His evidence went to additional issues identified since the termination of Mrs Curtis' employment.

[13] Ms Mirza is a Senior Accountant who undertakes accounting duties for Oxford. Her evidence went to a discussion she had with Mrs Curtis in early June 2014 about an error relative to GST claims. She asserted that Mrs Curtis had advised her that Dr Goh reused certain dental items and that she made allegations about his use of discarded parking tickets for taxation purposes. Ms Mirza reported this to Mr Chan of Oxford.

[14] Ms Boukan is the Operations Manager of Oxford. She is also involved in other associated businesses. Her evidence went to her provision to Mrs Curtis of a warning on 16 November 2012 in relation to her management of another staff member. Ms Boukan prepared a second warning relative to Mrs Curtis' conduct toward Dr Goh on 30 April 2014. Her evidence went to the support she provided to Mrs Curtis and her concerns over Mrs Curtis' breaches of confidentiality. Ms Boukan prepared a further warning relative to Mrs Curtis’ conduct in dealing with Ms Mirza. Ms Boukan's evidence went to errors she alleged were made by Mrs Curtis relative to pays and leave calculations for other staff. Ms Boukan also gave evidence about other matters associated with Mrs Curtis which she became aware of after the termination of her employment.

[15] Ms Boukan completed the Small Business Fair Dismissal Code Checklist relative to the termination of Mrs Curtis' employment on 23 July 2014.

[16] Dr Goh's evidence was that he gave Mrs Curtis a verbal warning about her refusal to manage a staff member shortly after an incident on 16 November 2012. Dr Goh asserted that Mrs Curtis became abusive on 30 April 2014 such that he asked Ms Boukan to give her a warning. His evidence went to his concern over her conduct in dealing with Ms Mirza. Dr Goh recounted his concern over Mrs Curtis' errors in applying pay rates to other Oxford employees and his decision that her employment should be terminated. Dr Goh also recounted concerns about issues that he had become aware of since Mrs Curtis' dismissal.

[17] Clearly, my conclusions in this matter depend on findings of credibility.

[18] The Small Business Fair Dismissal Code states:

“The Code

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity. A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[19] I have considered the extent to which the termination of Mrs Curtis was consistent with this Code. Mrs Curtis was dismissed on 26 June 2014. She was given a letter confirming the termination of her employment with effect from that day. This letter provided for two weeks pay in lieu of notice. Consequently, I do not consider that employment termination represented summary dismissal. Nevertheless, I have considered the basis for the termination of Mrs Curtis’ employment.

[20] The letter of 26 June 2014 refers to mistakes made by Mrs Curtis in calculating payments to other employees. It refers to a written warning of 2 June 2014 and to ongoing errors. I am not satisfied that there were reasonable grounds for Oxford to believe that Mrs Curtis’ conduct justified immediate dismissal. The payroll errors which are referred to in the termination of employment letter have not been established to my satisfaction and, in any event, I have noted that Oxford stopped Mrs Curtis from accessing the professional employment advisory service relevant to award entitlements. I am not satisfied that the concerns addressed in the two warnings given to her were subsequently replicated so as to represent conduct sufficiently serious to justify immediate dismissal. I have noted that, after the termination of Mrs Curtis’ employment, a police report was made by Dr Goh. This related to allegations that Mrs Curtis had maintained a time book and had recorded that she had been working for 40 hours a week when she was only paid for 38. Mrs Curtis had subsequently taken time off work. I think it likely that this arrangement reflects a common application of the 38 hour week provisions contained in many awards. Consequently, I am not satisfied that this complaint was reasonably made.

[21] I have regarded the termination of Mrs Curtis employment as a dismissal with notice. That said, I am not satisfied that the full quantum of notice payable to her was in fact, made. I am not satisfied that the reason specified in the termination of employment letter of 26 June 2014 represent a valid basis for termination of employment for the reasons I have specified above.

[22] I have noted that Mrs Curtis was given written warnings. I have accepted her evidence that the warning which Ms Boukan asserts was e-mailed to her 1 shortly after Dr Goh gave her a verbal warning in November 2012, was not in fact given to her until after the termination of her employment.

[23] I have also concluded that Mrs Curtis is most likely correct in advising that the two warnings dated 2 May 2014 and 2 June 2014 2 were both e-mailed to her on 2 June 2014. In reaching this conclusion I have also accepted that Mrs Curtis’ behaviour relative to her disclosure of personal information about Dr Goh was inappropriate and that the May 2014 incident reflected the ongoing deterioration of her relationship with Dr Goh. Dr Goh’s evidence was that he decided to terminate Mrs Curtis employment. His evidence was that:3

“After this warning was issued, a further issue of Mrs Curtis’ incompetence came up.

Mrs Curtis had been applying the incorrect rate of pay and leave loading to casual workers at Oxford Dental. The affected employees were Stefanie Hutchings and Rachel Altamura. I needed to correct these errors. I was very disappointed that the errors had been made. I had explained to her in February 2013 the correct calculation of ordinary hours under the Health Professionals and Support Services Award 2010.

With respect to Rachel Altamura, Mrs Curtis’ errors resulted in an overpayment of around $770. A copy of emails between me, Mr Curtis and Stephne Boukan on this issue is annexed and marked TG-2.

For me, this error was the last straw. I could not continue to employ Mrs Curtis. In hindsight, I should have terminated her employment immediately after I found out that she had been making the comments about me and the ZQuiet unit and parking tickets to the accountants.

I considered that she could no longer remain employed. She had sullied my reputation and caused significant cost to the business. She was not competent.”

[24] I am not satisfied that Oxford provided Mrs Curtis with an opportunity to properly respond to the warning and a reasonable chance to rectify the problem. Simply put, this reflected the serious deterioration of the relationship between Mrs Curtis and Dr Goh.

[25] The manner of the termination of Mrs Curtis employment meant that she was given no opportunity to have another person present to assist.

[26] In considering the Small Business Fair Dismissal Code, I have had regard to the Checklist completed by Ms Boukan on 23 July 2014. Not only was this checklist completed well after the termination of employment was effected, I consider that it was seriously flawed in that it was completed so as to justify the termination of employment decision.

[27] Consequently, I have concluded that Oxford did not comply with the Small Business Fair Dismissal Code in terminating Mrs Curtis's employment. As a consequence, I have then considered the material before me in the context of s.387 of the FW Act. That section states:

“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.”

[28] I have considered each of these factors.

Valid reason

[29] Notwithstanding subsequent changes to the legislation so as to separately identify various elements of the concept of a valid reason, I have adopted the principle specified by Northrop J in Selvachandran v Peterson Plastics Pty Ltd 4.

[30] I have concluded that the reason for the termination of Mrs Curtis's employment reflected the near total breakdown of her relationship with Dr Goh. In this respect I have taken into account disputation about the terms of her employment, Dr Goh’s concerns about statements which he understood Mrs Curtis had made to other people about his personal affairs and business conduct and his concerns about her competence. While some of these concerns appear to be quite legitimately founded, I am not satisfied that these allegations were objectively investigated and established as correct. For instance, Dr Goh was quite legitimately concerned about his understanding that Mrs Curtis had asserted that he would recycle used dental products. Further, Dr Goh may well have had a legitimate basis upon which to doubt Mrs Curtis' capacity to accurately calculate employee pay rates. However, as he did not permit her to access advice in this respect and the material before me does not enable an accurate conclusion about the alleged errors, I am not satisfied that these behaviours represent valid reasons for the termination of Mrs Curtis’ employment.

[31] Dr Goh asserts that since the termination of Mrs Curtis employment, Oxford has become aware of missing paperwork, the time book referenced above and altered annual leave records. I am not satisfied that any of these factors have been established so as to represent valid reasons for the termination of Mrs Curtis employment. I have accepted that Mrs Curtis may not have been given the November 2012 warning and hence this may well explain why that was not in her file. I have also accepted that there was ongoing disputation between Mrs Curtis and Dr Goh about the terms of her employment contract and hence the standing of that contract was unclear. Oxford is required to maintain records relative to Mrs Curtis employment. I am not satisfied that the alleged unauthorised time book represents misconduct. Finally, on the evidence before me does not permit a conclusion that Mrs Curtis’ annual leave entitlements have been fraudulently altered.

[32] Consequently, I am not satisfied that there was a valid reason for the termination of Mrs Curtis’ employment.

Notification of the reason

[33] Mrs Curtis was given advice of the termination of her employment. 5 I am not satisfied that this advice reflected the entirety of the reasons for the termination of her employment in that it did not refer to the breakdown in a personal relationship between Mrs Curtis then Dr Goh. Nevertheless, it detailed various allegations about Mrs Curtis’ behaviour and competence.

Opportunity to respond

[34] The termination of employment decision was made by Dr Goh and Ms Boukan. It was implemented by Ms Boukan. There was no opportunity for Mrs Curtis to respond to the reasons for the termination of her employment.

Any unreasonable refusal to allow Mrs Curtis to have a support person

[35] Mrs Curtis did not have the opportunity to request a support person as she was given no notice of the meeting where the termination of her employment was put into effect.

Warnings with regard to unsatisfactory performance

[36] Mrs Curtis was given various verbal and written warnings. I have detailed my concerns about those written warnings in terms of the times at which they were given. In terms of the verbal warnings asserted to have been given to Mrs Curtis I have concluded that it is likely that these were given in the context of the deteriorating relationship between Mrs Curtis and Dr Goh and I am not satisfied that a clear and sustainable basis for all of those warnings was established. In any event, to the extent that the termination of employment decision relied upon the matters addressed in the warnings dated 2 May 2014 and 2 June 2014, I am not satisfied that these alleged behaviours were replicated by Mrs Curtis so as to then legitimately underpin the termination of employment decision.

Size of the Oxford enterprise - likely impact on procedures

[37] I have noted that Oxford is a small business and that it has no apparent procedures to deal with circumstances such as this.

Absence of dedicated human resource management expertise

[38] I have concluded that Oxford has no ready access to dedicated human resource management expertise. I can only recommend that it consider accessing such expertise in the future.

Any other matters considered relevant

[39] I have noted that, prior to the termination of her employment, Mrs Curtis was actively pursuing other employment opportunities.

Conclusion - harsh, unjust or unreasonable

[40] I have concluded that the termination of Mrs Curtis' employment was harsh in that it lacked a valid reason. It was unjust in that it was effected in an unfair manner but it was not unreasonable because of the "toxic" relationship between Mrs Curtis and Dr Goh. As a consequence I have found that the termination of Mrs Curtis's employment was unfair.

Remedy

[41] In these circumstances s.390 establishes that I can consider a range of remedies. The primary remedy is that of reinstatement. Neither party suggest that reinstatement is appropriate and it is patently clear that it would be entirely inappropriate given the relationship between Mrs Curtis and Dr Goh. In those circumstances, I consider that an order for compensation is appropriate given my conclusion that Mrs Curtis' employment termination was unfair.

[42] Section 392 establishes the factors I am required to take into account in considering all the circumstances of this matter. I have considered each of these factors.

[43] There is no information before me that indicates that an order of the nature being considered would affect the viability of the Oxford enterprise. Mrs Curtis was employed by Oxford for a little over two years. I do not consider this to be a substantial period of time.

[44] I have considered the remuneration that Mrs Curtis would have received, or would have been likely to receive had she not been dismissed. This requires an assessment of the likely duration of her employment. On the evidence before me I am surprised that this employment lasted as long as it did and consider that, even if Mrs Curtis had not been dismissed on 26 June 2014, her employment would have lasted no more than another three weeks. Mrs Curtis' relationship with Dr Goh had deteriorated to the extent that they were, in effect, not on speaking terms. Active consideration was being given to assessing the accuracy and appropriateness of all of her actions and Mrs Curtis had been pursuing other employment opportunities.

[45] I have noted that Mrs Curtis has unsuccessfully sought alternative employment in an effort to mitigate her losses and I am satisfied that her efforts in this regard are entirely appropriate. I do not consider that it is likely that she will obtain an income between the date of the Order reflecting this decision and the payment of any compensation amount.

[46] I have taken into account the one week’s additional notice provisions set out in s.117(3) of the FW Act in calculating the amount of compensation applicable. I have also taken into account that Mrs Curtis was paid two weeks pay in lieu of notice.

[47] I have adopted the principles set out in Sprigg v Paul’s Licensed Festival Supermarkets 6 in concluding that an Order for four week’s pay is appropriate in these circumstances.

[48] An Order (PR555939) giving effect to this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

I Curtis on her own behalf.

T Goh representing Oxford Dental Practice.

Hearing (Determinative Conference) details:

2014.

Adelaide:

September 16.

 1   Exhibit O3, Annexure SB1

 2   Exhibit O3, Annexure SB4 and SB5

 3   Exhibit O2, paras 15-19

 4 (1995) 62 IR 371 at 373

 5   Exhibit C1

 6   AIRC, Print R0235, (24 December 1998)

Printed by authority of the Commonwealth Government Printer

<Price code C, PR555938>