Jaime Colley v Orana Diagnostics Pty Ltd

[2021] FWC 1677

[2021] FWC 1677

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jaime Colley
v
Orana Diagnostics Pty Ltd
(U2020/15948)

COMMISSIONER JOHNS SYDNEY, 17 MAY 2021

Application for an unfair dismissal remedy.

[1] On 14 December 2020, Ms Jaime Renee Colley (Applicant/Ms Colley) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Orana Diagnostics Pty Ltd (Respondent). The Applicant seeks monetary compensation and/or reinstatement.

Background

[2] The Applicant commenced employment as a full time Medical Receptionist with the Respondent on 16 September 2020.

[3] On 8 December 2020, the Applicant met with Associate Professor John Quin, the Respondent’s Director who provided the Applicant with a letter notifying her that her employment was terminated effective from 1 January 2021 1 (Termination Letter). The Applicant’s last day at work was 18 December 2020.

[4] The Termination Letter explained the Applicant’s employment was terminated due to complaints of unsatisfactory performance specifically; unplanned leave, failure to answer the telephone, failure to complete tasks, errors in completing tasks and a lack of respect for colleagues. 2

Determinative Conference

[5] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

[6] After taking into account the views of parties I considered it appropriate to hold a determinative conference.

[7] The determinative conference was held on 22 February 2021. The Applicant was represented by Mr J Armstrong. It is understood that Mr Armstrong is a trade union official, however his representation of the Applicant was done in a personal capacity. Noting that Mr Armstrong is not a lawyer or paid agent, I am satisfied that s.596 of the FW Act is not enlivened and it was not necessary for me to consider permission to appear. The Respondent was represented by Associate Professor J Quin, the Director of the Respondent. Evidence was provided in the matter by:

•  The Applicant

•  Associate Professor John Quin

•  Ms Carmelina Scaglione, the Respondent’s Office Manager

•  Ms Yen Chua, the Respondent’s Receptionist

[8] A one-page statement in the matter was also provided by Associate Professor Vivek Thakkar, a consultant Rheumatologist who worked at the Respondent’s practice. As Associate Professor Thakkar was unavailable for cross-examination, I have determined that the statement of Professor Thakkar will not form part of my consideration.

[9] It is not in dispute the Applicant’s termination came into effect on 1 January 2021. At the beginning of the proceedings, I dealt with the Respondent’s submission that this application was made prematurely by the Applicant as she was still employed on 14 December 2020. Having heard from both parties on the issue in the circumstances where this was a result of representative error, I have decided to exercise my discretion under s.586 of the FW Act and correct the irregularity by amending the date of the application to 2 January 2021. 3

Filed Material

[10] In coming to this decision, I have had regard to all of the material filed in the matter, including the following material filed by the parties.

Exhibit	Document title
1.	Forms: F2 – Unfair Dismissal Application dated 14 December 2020
2.	Forms: F3 – Employer Response dated 21 December 2020
3.	● List of Applicant’s sick days from 16 September 2019 to 18 December 2020
4.	● Employment Contract signed 17 September 2019
5.	Respondent: Termination Letter dated 4 December 2020
6.	Respondent: Statement of Associate Professor Vivek Thakkar dated 22 January 2021
7.	Respondent: Statement of Yen Chua dated 26 January 2021
8.	Respondent: Statement of Carmelina Scaglione dated 27 January 2021
9.	Respondent: Small Business Fair Dismissal Code 2011 Checklist
10.	Respondent: Submissions
11.	Respondent: List of Merits of Objections
12.	Respondent: Possible Outcomes
13.	Applicant: Outline of Arguments: Objections
14.	Applicant: Outline of Arguments: Merits
15.	Applicant: Statement of Evidence
16.	Applicant: Document List
17.	● A – Receipt: Liverpool Alterations and Repairs addressed to Carmelina Scaglione dated 13 October 2020
18.	● B – Picture message: Clothing tag
19.	● C – E – Text correspondence with Ms Carmelina Scaglione from 26 March 2020 to 12 May 2020
20.	● F – Termination letter dated 4 December 2020
21.	● G – Medical Certificate dated 27 April 2020
22.	● G1 – Clinical notes dated 27 April 2020
23.	● H – Medical Certificate dated 10 June 2020
24.	● I – Clinical Notes dated 6 July 2020
25.	● J – Medical Certificate dated 7 July 2020
26.	● K – Medical Certificate dated 9 July 2020
27.	● L – N Employment Contract
28.	● O – Reference letter dated 17 December 2020
29.	● P – Termination Payslip
30.	● Q – Timesheet for period: 14 December 2020 to 18 December 2020
31.	● R – Timesheet for period: 28 December 2020 to 1 January 2021
32.	● S – Timesheet for period: 21 December 2020 to 25 January 2020
33.	● T – Bank transaction record of parking fees for 18 December 2020
34.	Respondent: Document 1 – Statement of Evidence
-	Respondent: Document 2 – Statement of Carmelina Scaglione dated 27 January 2021
-	Respondent: Document 3 – Statement of Yen Chua dated 26 January 2021
-	Respondent: Document 4 – Statement of Associate Professor Vivek Thakkar dated 22 January 2021
-	Respondent: Document 5 – List of Applicant’s sick days from 16 September 2019 to 18 December 2020
-	Respondent: Document 6 – Termination Letter dated 4 December 2020
-	Respondent: Document 7 – List of Merits of Objections and Possible Outcomes
35.	Respondent: Document 8 – Termination Payslip
36.	Respondent: Document 9 – Income Statement for year ended 30 June 2019
37.	Respondent: Document 10 – Response to Applicant’s Objections
38.	Respondent: Document 11 – Response to Applicant’s Statement of Evidence
39.	Respondent: Document 12 – Response to Applicant’s Outline of Arguments: Merits
40.	Respondent: Document 13 – Outline of Argument: Objections

Initial matters

[11] Section 396 of the FW Act sets the matters which I am required to decide before I consider the merits of Ms Colley’s application.

[12] As discussed at [2] above, Ms Colley’s application was made within the period required by s 394(2) of the FW Act.

[13] There is no dispute between the parties, and I am satisfied on the evidence that:

(a) The Applicant was a person protected from unfair dismissal;

(b) the Respondent was a “small business employer” as defined in s 23 of the FW Act at the relevant time, employing fewer than 15 employees. I am therefore required to decide as an initial matter whether the dismissal was consistent with the Small Business Fair Dismissal Code (Code), which I will consider below; and

(c) The Applicant’s dismissal was not a case of genuine redundancy.

Small Business Fair Dismissal Code

[14] Section 388 of the FW Act provides:

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[15] The Code declared by the Minister pursuant to s 388(1) of the FW Act is in the following terms:

“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 the Fair Work Commission, 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.”

(my underlines)

Did the Respondent comply with the Small Business Fair Dismissal Code in relation to the dismissal?

[16] During the proceedings the Respondent pressed its argument that the Applicant’s actions amounted to serious misconduct.

[17] Serious misconduct is defined for the purposes of the FW Act in the Fair Work Regulations 2009 (Regulations) as follows:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For sub regulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.”

[18] In Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services 4 (‘Ryman’), a Full Bench of the Commission (Hatcher VP, Kovacic DP and Bissett C) said this of the operation of the ‘summary dismissal’ section of the Code:

“[41]In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates in the following way:

(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.

(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.”

[19] The Applicant was notified of her dismissal in writing during a meeting with the Respondent’s Director on 8 December 2020. The Termination Letter gives the Applicant’s notice that her employment will end on 1 January 2021. 5

[20] Despite the Respondent pressing an argument that the matter involved serious misconduct, it is clear based on the Termination Letter that the Applicant was not summarily dismissed and therefore, consistent with the approach set out by the Full Bench in Ryman, it is the “other dismissal” section of the Code that applies to Ms Colley’s dismissal.

Were reasons given to the employee?

[21] It is not disputed, and I accept the Applicant was notified of the reasons for dismissal by letter to the Applicant dated 4 December 2020. 6

[22] I am satisfied that the Respondent has complied with this limb of the requirements under the Code.

Was it a valid reason based on the employee’s conduct or capacity?

[23] In Xun Hu v Rong Wei Pty Ltd ATF The Bian Family Trust T/A Shanghai Garden Chinese Restaurant 7, (‘Shanghai Garden’) Deputy President Anderson said the following regarding how the words ‘valid reason’ are to be applied in the context of the Code:

“[107] Determining compliance with this requirement involves an objective assessment of conduct and capacity, akin to a “valid reason” assessment in section 387(a). Unlike the ‘Summary Dismissal’ part of the Code, the language of the ‘Other Dismissal’ part makes no reference to the more subjective test of an employer simply holding a reasonable belief that serious misconduct occurred.

[108] For a reason to be a “valid reason” it should be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.” Assessment of a valid reason should be applied in a “common sense way” having regard to the “practical sphere of the relationship” to ensure that the employer and employee are each treated fairly. It should “not impose a severe barrier” to the right of an employer to dismiss an employee. Nonetheless, a dismissal on notice for performance even in a small business needs to be objectively verifiable.”

[24] In Shanghai Garden, the Deputy President applied the well-known meaning of ‘valid reason’ as set out by Northrop J in Selvachandran v Peterson Plastics Pty Ltd. 8 I agree with the approach of the Deputy President and respectfully adopt it here.

[25] Much was made in the proceedings of two allegations of serious misconduct. First, the allegation that, on 27 October 2020, the Applicant was absent from work for a period of three hours without prior notice or authorisation. Second, raised only during the course of the oral submissions during the determinative conference, that the Applicant had unlawfully made copies of the Respondent’s confidential information. 9 Despite the impassioned submissions of the parties, in my view, these matters are largely irrelevant to the matter at hand. As I have outlined above, this matter does not concern serious misconduct.

[26] The reason for which the Applicant was terminated was set out in the Termination Letter, it states:

“I am sorry to take this step but the complaints have increased and a number of people are unhappy with your work. For your benefit I list the complaints.

Unplanned absentee days- over the past 16 months you have had in excess of 12 unrostered days away from work. Most of these days have been Monday or Tuesday when you were most needed. This has placed increased load on your colleagues.

Not answering the phone when it is ringing. Several GPs and patients have complained that the phone is not answered and often goes to message.

Even when you are at work there are periods when you are not in the office. A lot of this time is spent in Dr Hong’s office.

Tasks not done, frequent mistakes, a lack of respect for your more senior colleagues, unequal break periods with your colleagues often not being able to take meal breaks as there is no back up in the office.” 10

[27] Put simply, the reason for dismissal was that the Applicant was a poor performer. Unsatisfactory performance has long been held to constitute a valid reason for dismissal, and one that may go to either capacity or conduct of an employee. 11

[28] The Applicant’s evidence in the matter rejects that there was a valid reason with respect to her performance. She submits:

•  She was not given proper notice that the Respondent considered there to be issues relating to her performance;

•  She had not been given adequate opportunity to correct any deficiencies;

•  Some of the matters raised went to issues beyond the Applicant’s control, for example technical difficulties with the phone system and fax machine;

•  The majority of leave taken had either been applied for and approved or medical certificates had been supplied. 12

[29] In my view, having considered all of the evidence in the matter, whilst there is a case to be made that the timid management practices of the Respondent contributed to some of the issues, particularly with respect to the Applicant’s attendance record, I am satisfied that there was a valid reason relating to the Applicant’s performance.

Was the employee warned?

[30] The Respondent submitted evidence that five meetings were held between the Applicant and Associate Professor Quin where the Applicant’s performance was raised with her verbally. The Respondent submitted these meetings occurred on:

•  18 October 2019;

•  1 May 2020;

•  12 June 2020;

•  13 July 2020; and

•  30 October 2020. 13

[31] In Associate Professor Quin’s evidence he stated that, on each occasion that a meeting was held, he began by saying “I've asked you to come in here to discuss what has been happening in your workplace and your performance”. 14

[32] The Applicant rejected this view, though her materials on this point left much to be desired. The following exchange was had during Associate Professor Quin’s cross-examination of the Applicant at the determinative conference:

“PROFESSOR QUIN: Ms Colley, in your initial presentation to the Commission you stated that the corrective meetings did not occur. Do you still stand by that?---Yes.

And yet in your latest submission - let me give you the exact page number – you state that the meetings did occur?---So I was not aware that they were meetings. It was like just a discussion between yourself and I.

But now in your latest statement you said they did occur and now you're saying they didn't occur, which is true?---There was no meetings, there was only discussions.

THE COMMISSIONER: Sorry, I am just going to cut across you there. Ms Colley, I am completely unimpressed by word games. You were called in to a discussion with your boss, weren't you?---Yes.

And he had some discussions with you about your performance, didn't he?---Not about my performance.

“He said you're not doing this well and you should be doing this better, didn't

he?---No.

Well, what did he say? It wasn't a polite conversation about how your day's going, was it?---So the first meeting I had in 2019, a month after I started, he – he was just checking up and seeing how I was going, and that's it for that meeting. For the other meetings, there was one in December and that was 2019 discussing my termination. Not termination, sorry, that was discussing my probation, my three month probation being up, and they wanted me to stay on. And then there was one in July 2020. Straight after I had the COVID vaccine Professor Quin wanted to make sure I was up for being at work. And then December 2020 there was the termination meeting.

So your evidence is they're just general chats and catches up, are they?---Yes.

And at no point did Professor Quin say, 'Look, I'd rather you do this differently, I'd like you to improve on this'?---No.” 15

[33] I find the Applicant’s position as illustrated above incredulous. On this point, I prefer the evidence of the Respondent and I am satisfied that the Applicant was warned about her performance on the five dates listed above. I am further satisfied that the Applicant was on notice that failure to improve may result in termination of her employment.

[34] I am therefore satisfied that the Respondent has complied with this limb of the requirements under the Code.

Was the employee given an opportunity to respond and rectify problem?

[35] Having found above that the Applicant was warned on a number of occasions that her performance was not of an acceptable standard, I am also satisfied that there was ample opportunity for her to understand her employment was at risk and act to improve her performance. 16

[36] I am therefore satisfied that the Respondent has complied with this limb of the Code that requires a warning be provided to an employee prior to termination for poor performance.

Procedural matters

[37] With respect to whether the Applicant could have a nominated person present during performance meetings, In the Applicant’s outline of argument  17 it states that she asked to have a support person present and this was refused. However, the Applicant later contended that she was not offered a support person. The following exchange was had during the determinative conference:

THE COMMISSIONER:  Sorry, Mr Armstrong, I just have a follow up question there.  Professor Quin, did you give the applicant a heads up that it was going to be a performance discussion?---Yes, I did.

Yes, all right.  Thank you.  And she did not request a support person?---She did not request a support person, and I think - look, let me get this straight.  I would have been quite happy - I've worked in New South Wales Health for 40 years.  I'm used to having these meetings, and what happens at these meetings obviously I don't run them, they're run by Human Resources, but the applicant is always given the opportunity to have a union rep, if they are a member of the union, and a support person, and if I'd have allowed that we wouldn't be here today because we would have had an independent witness about what was happening in these meetings.  I admit that I have been negligent in not having recorded or minuted these meetings and having somebody in attendance, and we have fixed this with an employer company called Employsure which is now going to handle all these sort of human resources issues and avoid these problems ever happening again.  It was my mistake.  I am so used to depending upon other people doing the human resources in the healthcare system that I didn't run these meetings absolutely correctly.  I admit that failure, but nevertheless they occurred, and they were recorded, the dates were recorded and certainly listed in my diary were the main issues to be discussed. 18

[38] It is worth noting that there is no positive obligation on an employer to offer an employee the opportunity to have a support person. The unchallenged evidence was that no request for a support person to be present was made by the Applicant. 19

[39] Associate Professor Quin conceded during cross-examination that the disciplinary process was not run ‘absolutely correctly’. 20 However, he stated that performance meeting had occurred, and the dates and times were recorded.21 He advised that an external firm had now been engaged to ensure this was managed better in future.

[40] In support of the claim that the dismissal complied with the code, evidence was provided in the form of a copy of the Termination Letter, 22 the Small Business Fair Dismissal Code Checklist23 and the statements provided on behalf of the Respondent.24

[41] I am therefore satisfied that the Respondent has complied with this limb of the requirements under the Code.

Conclusion

[42] For the above reasons, I find that the dismissal of the Applicant was consistent with the Small Business Fair Dismissal Code. It follows that the Application for an unfair dismissal remedy must be dismissed. An Order [PR729899] to this effect has been issued with this decision.

COMMISSIONER

Appearances:

Mr J Armstrong for the Applicant

A Prof J Quin for the Respondent

Hearing details:

2021;

Sydney (By Microsoft Teams);

22 February

Printed by authority of the Commonwealth Government Printer

<PR728153>

 1   It is worth noting that the Termination Letter was dated 4 December 2020, however, was given to the Applicant on 8 December 2020.

 2   Termination Letter dated 4 December 2020 (Exhibit 5).

 3   Transcript of Proceedings, PN33.

 4   [2015] FWCFB 5264.

 5   Termination Letter dated 4 December 2020 (Exhibit 5).

 6   Ibid.

 7   [2020] FWC 5210.

 8 (1995) 62 IR 371 at 373.

 9   Transcript of Proceedings, PN76.

 10   Termination Letter dated 4 December 2020 (Exhibit 5).

 11   Annetta v Ansett Australia Ltd, Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000), at [15]; Kolodka v Virgin Australia Airlines Pty Ltd t/a Virgin Australia[2012] FWA 7828.

 12   Applicant’s outline of arguments: objections (Exhibit 13).

 13   Statement of Associate Professor John Quin (Exhibit 34); Statement of Carmelina Scaglione dated 27 January 2020 (Exhibit 8).

 14   Transcript of Proceedings, PN123.

 15   Transcript of Proceedings, PN419- 427

 16   Johnston v Woodpile Investments T/A Hog's Breath Café - Mindarie[2012] FWA 2 (Williams C, 6 January 2012), at 58.

 17   Applicants Outline of Argument: Merits (Exhibit 14)

 18   Transcript of Proceedings, PN116.

 19   Transcript of Proceedings, PN116

 20   Ibid.

 21   Ibid.

 22   Termination Letter dated 4 December 2020 (Exhibit 5).

 23   Completed Small Business Fair Dismissal Code 2011 Checklist (Exhibit 9).

 24   Statement of John Quin (Exhibit 34); Statement of Carmelina Scaglione dated 27 January 2021 (Exhibit 8); Statement of Yen Chua dated 26 January 2021 (Exhibit 7).