Jasminka (Jazz) Fisher v M & D Employment Services Pty Ltd T/A Totally Adult

[2010] FWA 8366

[2010] FWA 8366

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jasminka (Jazz) Fisher
v
M & D Employment Services Pty Ltd T/A Totally Adult
(U2010/6626)

COMMISSIONER ROBERTS SYDNEY, 3 DECEMBER 2010

Application for unfair dismissal remedy.

[1] This decision concerns an application lodged on 26 February 2010 by Ms Fisher pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of her employment by M & D Employment Services Pty Ltd (the Company or the Respondent).

[2] The application was dealt with by a Fair Work Australia Conciliator on 29 March 2010 but the conciliation was unsuccessful.

[3] The arbitration came before me for hearing in Brisbane on 18, 19 August and 15 September 2010. Ms Fisher was represented by Mr A Tayler of Workers First Australia Pty Limited and the Company was represented by its Director, Mr M Bryant.

[4] The following witnesses gave sworn evidence for the Applicant:

• Ms Fisher.



• Ms P Greig, a former employee of M&D.



• Ms S De Bruin, a former employee of M&D.

[5] The following witnesses gave sworn evidence for the Respondent:

• Mr M Bryant.



• Mr K Wooldridge, Area Manager of M&D.



• Mr R Kiemann, State Manager of M&D.



• Ms R Danzey, a Store Manager of M&D.

Background

[6] Ms Fisher commenced employment with the Company on or about 20 July 2009 and was summarily dismissed with effect from 12 February 2010 for alleged breaches of Company procedures amounting to misconduct.

[7] In her Form F2 (Application for Unfair Dismissal Remedy) it was said:

“This dismissal was unreasonable because the applicant was not guilty of the alleged breaches and/or the alleged breaches were not contrary to the employer’s policies and/or the policies were trivial and unreasonable.

The dismissal was unjust because the applicant was not afforded any reasonable chance to offer an explanation for the alleged breaches and was not provided an opportunity to remedy any alleged deficiencies nor was she provided with any warning that her employment may be in jeopardy nor was she provided with notice of the termination or alternatively any pay in lieu of notice.

The dismissal was harsh because the applicant is a single mother and has now lost her source of income. The dismissal was also harsh as one of the reasons offered for the dismissal was not being available outside of hours when the applicant was not being paid to be on call.”

[8] In its Form F3 (Employer’s Response to Application for Unfair Dismissal) the Company replied that it rejected Ms Fisher’s claims and alleged she “was given many warnings as to appropriate behaviour as a Manager and did not respond to her instruction, which was given in a calm and professional manner.”

[9] In an attachment to the Form F3 the Company elaborated on its position. I will pay further regard to those elaborated reasons later in this decision.

Legislative Framework

[10] Section 385 of the Act provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

Evidence

Ms Fisher

[11] Ms Fisher gave sworn evidence and submitted a witness statement. 1 Ms Fisher also submitted a supplementary witness statement.2

[12] Ms Fisher’s primary witness statement was, in summary, that:

• She was the Totally Adult Store Manager at the Company’s Morayfield store. Her duties included “money handling, stock control, supervision of staff, store presentation, marketing, customer service, phone and internet communication with customers and suppliers, order processing and local administration functions such as rostering.”



• It was her “responsibility to ensure that the policies and procedures provided by the employer were adhered to.”



• She was unaware of any requirement to inform anyone of her whereabouts on her days off.

[13] Ms Fisher’s statement went on to say that she had not misused the Company’s internet and email systems and had been “unfairly accused of allegedly not attending to a customer who was in the Morayfield Totally Adult Store.” She had delayed dealing with a customer in the store while speaking to another customer on the phone. Both customers had purchased items. In relation to an issue concerning appropriate footwear, Ms Fisher said that on one occasion she had worn inappropriate footwear to work as her usual work shoes had been wet. She believed that wearing wet shoes to work would have exposed her to an unnecessary risk of injury.

[14] Ms Fisher’s statement went on to deal with the issue of store budgets and sales targets. She was approached by Mr Bryant in early 2010 at the Morayfield store, “and he told me if I did not increase the sales profits to at least $9,000 per week within the next 2 weeks I would be dismissed.” She was summarily dismissed on 12 February 2010:

“When I asked why I was dismissed Keri WOOLDRIDGE told me that the Director Mark BRYANT was angry because I had given Mark BRYANT a rock with eyes glued on it as a secret Santa gift for post Christmas party held on January 16, 2010.”

[15] Ms Fisher claims that she did not receive any payment in lieu of notice and has been actively seeking alternative employment since her dismissal by way of applying for new positions between 6 or 12 times per week. She went on to say that she is a single mother with two daughters aged fourteen and seven years respectively and lives in a rented house. She is also apparently undertaking vocational training and a business course.

[16] Ms Fisher’s supplementary witness statement was in a form of a reply to the evidence of Company witnesses. I have paid regard to this material in considering the evidence of those Company witnesses.

[17] In cross-examination, Ms Fisher said that on the day when she was uncontactable, she had presumed that another staff member rostered on that day would inform Mr Kiemann. 3 In relation to an incident where she was accused of neglecting a customer in the store in favour of a customer on the phone, she again denied acting improperly.4

[18] Ms Fisher said that she had a conversation with Mr Wooldridge concerning her wearing of open toed shoes. Mr Wooldridge told her that Mr Bryant had seen her and did not want her to wear open toed shoes again. There was no argument over the issue. 5 She went on to say that she had never been spoken to about uniform requirements after her initial engagement.6

[19] Ms Fisher went on to say, in summary, that:

• She had been threatened with dismissal, as had other managers, if financial targets were not achieved. 7



• She was dismissed about four weeks after Mr Bryant “... came into the store and said that I've got two weeks to pick up the store figures; if I can't do it, you'll put somebody else in there that can. There was no warning, that was it.” 8



• She believed that her dismissal was for personal not professional reasons. “I still don't know, to this day, what the actual, real reasons were.” 9



• She understood company policy about the use of the internet and shop computers. 10



• There was just one photo of a dog on the store computer and she saw no harm in it being there. 11



• She knew nothing of any pirate programs being downloaded. 12



• She agreed that Mr Bryant, Mr Wooldridge and Mr Kiemann “had spoken to you several times about inefficiency of work, how you weren't doing what was required with regards about the stores picking up as well, which you stipulated that I said. You're aware that these comments were made to you”. 13



• She denied being warned about not operating within the manner set out by the respondent. She had been told these things as part of a general conversation. 14



• She denied ever telling customers that she was the owner of the Morayfield Store. 15



• Was asked: “You weren't reprimanded on several occasions by either myself, Mr Wooldridge or Mr Kiemann on inefficiencies, on your behalf, of running of that store at Morayfield?” and replied: “No.” 16



• Was asked: “I'm asking you, basically, did you enjoy your time and were we very hospitable to yourself whilst working with Totally Adult?” and replied: “No.” 17



• “I love my staff and I love my customers, but the company, itself, can be very highly-stressed, very unapproachable, not very helpful.” 18

[20] In re-examination, Ms Fisher said that the photo of a dog on the store computer was placed there as a screen saver by Ms De Bruin. She went on to say that she had had a “general chitchat” with Mr Bryant concerning a number of matters including the condition of the front window of the store, the failure of the opening light, repairs to internal lights etc. 19

[21] Ms Fisher went on to say that she would have continued working for the Company if she had not been dismissed. 20 She would have stayed “maybe until something else came along. But, like I said to you, the pressures on a sole parent with - raising two kids on my own, it was very important that I had an income so I could support those children.”21

Ms Greig

[22] Ms Greig gave sworn evidence and submitted a witness statement 22. It was Ms Greig’s statement, in summary, that:

• She was employed as Manager of the Totally Adult Store at Redcliffe from about September 2008 to November 2008, when she resigned. She rejoined the Company in the same position in January 2009. She resigned in July 2009 due to the behaviour of Mr Bryant.



• “I recall that there was a requirement to wear black pants or a skirt.”



• “I recall that there was a requirement to wear closed in shoes.”



• “I recall that there were several staff who did not comply with this requirement.”



• “Mark BRYANT would frequently treat people differently to others in his employ if he did not like them.”



• As Store Manager Mark BRYANT had an expectation, that if staff in your Store were unable to cover shifts, that it was my Responsibility as Store Manager to cover the shift without being paid.



• She was not paid an on-call allowance. She had been abused by Mr Bryant over the telephone.



• “I recall another occasion Mark BRYANT came into the Morayfield Totally Adult Store and removed all DVD stock from the shelves and started ripping stock off the shelves and demanding that stock be replaced on shelves the way he wanted them.”



• The Company did not want MSN messenger or any icons on its computers.

[23] In cross-examination, Ms Greig agreed that she was not “... happy with the confrontations that I had with you [Mr Byrant].” 23 She went on to say that she “... felt that it didn't matter what I said to you [Mr Bryant], it was not going to be a good - it wasn't an excuse, it was actually what was happening at the time and the task that I was trying to perform to the best of my ability.”24 Ms Greig agreed that Mr Bryant had praised her for her work on numerous occasions.25

[24] In re-examination, Ms Greig said that if a manager was not contactable, “we would get in a lot of trouble.” 26

Ms De Bruin

[25] Ms De Bruin gave sworn evidence and submitted a witness statement. 27 It was Ms De Bruin’s statement, in summary, that:

• She was previous employed as a part-time shop assistant by the Company. Her duties included customer service, cleaning and general cash handling.



• Ms Fisher was not responsible for uploading programmes into the computer system. The uploading was done by Ms Danzey after the applicant was dismissed.



• She recalled the requirement to wear black trousers and closed toe shoes but there was no stipulation as to the colour of the shoes and at least two workers would regularly wear open toed shoes.



• Mr Kiemann was aware of two other employees wearing open toed shoes.



• She has never met Mr Bryant.

[26] In cross-examination, Ms De Bruin agreed that there was material on the shop computer which should not have been there. 28 However, Ms De Bruin went on to say that the material objected to by the Company was not on the computer during the time Ms Fisher was employed. She went on to say that she was well aware that staff had to wear closed toe shoes.29

Mr Wooldridge

[27] Mr Wooldridge gave sworn evidence and submitted a witness statement in reply to Ms Fisher 30. It was Mr Wooldridge’s statement, in summary, that:

• Ms Fisher failed to follow multiple policies and procedures including those relating to uniform requirements, notification requirements regarding opening of a store, ordering of stock and failed to notify the State or Area Manager when uncontactable.



• Ms Fisher was:“Never able to simply say yes but always having to give another excuse as to why something wasn’t done correctly.”



• Ms Fisher is unemployable.



• He did not know how anyone could injur herself by wearing wet shoes.



• “As part of my job description, (Area Manager) I received the orders from the stores and adjust accordingly while ordering, ensuring I only order what is required. Jazz struggled greatly with this and placed orders for stock that was not required and at cost to the company.”

[28] In cross-examination, Mr Wooldridge said that he had been Area Manager for about three months at the time Ms Fisher was dismissed, having taken over from Mr Kiemann. 31 He went on to say that Ms Fisher did not follow procedures or guidelines in such matters as ordering of stock and wearing approved shoes.32

[29] Mr Wooldridge’s further evidence concerned the issue of Ms Fisher’s contactability on her days off and Ms Fisher’s alleged failure to wear regulation coloured clothing whilst at work. 33 He went on to say that it was his decision to dismiss Ms Fisher.34 He was asked: “On what did you base that decision?” and replied: “An inability to get a satisfactory response to procedural breach and - yes, just - I was getting nowhere with it. I was getting nowhere.”35

[30] Mr Wooldridge went on to say that he had offered Ms Fisher casual work when he informed her that she could no longer be the Store Manager. 36 The offer was rejected.37 Mr Wooldridge was asked: “Was she dismissed for her poor performance, as you've set out in your evidence, or for misconduct?” and replied: “Mine would be more a - not fully understanding the misconduct thing. It was just for not being able to follow procedure and policy.”38

[31] Mr Wooldridge said that Mr Bryant did not have any involvement in the decision to dismiss Ms Fisher and the issue of financial targets was not part of his consideration. 39

[32] In re-examination, Mr Wooldridge was asked: “You said that it was management that seemed to be the problem with Ms Fisher, but was there also issues of not following company policy and procedures?” and replied: “Yes.” 40 He went on to say that company policy mandates the wearing of closed toe shoes.”41

Mr Kiemann

[33] Mr Kiemann gave sworn evidence and submitted a witness statement. 42 It was Mr Kiemann’s statement, in summary, that:

• All store managers agreed on accepting the role, to be contactable at all times.



• “... the Manager must also be available to step in should any staff be unable to fulfil their shifts.”



• “In reference to the Manager’s meeting Jazz has referred to in several instances in late 2009, was held as it was necessary to again address the lack of initiative and lack of detailed effort from several of our store Manager s and as a result several of our stores were floundering. The Meeting overall was to re-enforce and revise the role of our Managers and delegate responsibilities of various tasks and also discuss strategies to introduce various directions our stores needed to take to improve in the market place. It was summarized by inviting the Managers to implement positive action towards growth. No other person attending the meeting seemed to take the negative impression that Jazz Fisher seemed to have left with which could be seen as an indication to Jazz’s overall attitude & abilities as a Store Manager.”



• “I had shown Jazz and other Managers on many occasions how to compile an efficient order yet repeatedly Jazz chose to ignore my instruction and continue on a path of mis-management.”



• “In the time as store Manager for T/A Morayfield Jazz failed to produce any cost effective and realistic orders, each time I had to go through & amend & edit all of what Jazz submitted, spending many hours searching the inventory to see what products were actually needed and essential core items, omitting all the unnecessary wish list Jazz had provided. I would then forward the complete and amended order back to Jazz for her records & to assist her when compiling the next order.”



• “Many times I instructed Jazz on clear communication with Staff and effective steps when training staff. Jazz ignored my instruction & input every time it was given. Jazz often had minor issues within her store & with her Staff and often take this up with me only to then disregard my instructions. Contrary to company procedure Jazz would simply leave notes in desktop diaries in regards to procedure change or staff training.”

[34] In his supporting oral evidence, Mr Kiemann said that he was “...responsible for training all the managers, employing all the managers, implementing procedure policy.” 43 He trained Ms Fisher.44 Mr Kiemann went on to say:

• That “I found it really hard to get her to focus on the things at hand which was to do with the store and business rather than her personal life.” 45



• Was asked: “Did you find that she'd act on your instructions?---Not always, no. I found I had to go back a lot and do a lot of things in the store myself in my own time out of hours because I'd go there and find that things weren't followed up, they weren't done. Things like merchandising, ordering, training of the staff, training of new staff, implementing a new policy or procedure.” 46



• He was supportive of the termination of Ms Fisher’s employment. 47

[35] In cross-examination, Mr Kiemann:

• Agreed that his name was mis-spelled at the bottom of his written statement despite him typing it. 48



• Was asked: “Did you ever discuss this with Ms Fisher in the context that if she didn't improve her performance in ordering that there might be some disciplinary action that would follow?” and replied: “No. I just simply tried to coach into doing a proper job.” 49



• Said that he saw icons on the store computer well before Ms Fisher was dismissed. 50



• Was asked: “Of all of these issues and things that you have mentioned, would you agree that they're performance issues that you're talking about?” and replied: “I guess it would have to come down to that, yes.” 51



• Agreed that he did not given Ms Fisher any warnings that she may be subject to disciplinary action. 52



• Said that he had discussed Ms Fisher’s performance with Mr Bryant but Mr Bryant had not asked him to dismiss her. 53

Mr Bryant

[36] Mr Bryant gave sworn evidence and submitted a witness statement. 54 It was Mr Bryant’s statement, in summary, that:

• He personally spoke to Ms Fisher about being contactable at all times.



• All his stores must email him with their opening times.



• “On many occasions I had to contact Ms Fisher to serve a customer ...”



• “It is well known by ALL staff that if they are on the phone including myself or for another customer enquiry, they are to take a return number and hang up immediately and to attend to the customer who is in store.”



• “... it is the company who make sure that the appropriate shoes are worn. This has always been ours as well as state safety laws.”



• “... I make sure that at the time of employment the future employee is aware of our dress codes.”



• “This is why we make it compulsory to wear inclosed shoes.”



• Ms Fisher never reached her sales targets.



• He denied Ms Fisher’s evidence that he said that sales must increase to at least $9000 per week. “I asked Ms Fisher to at least try to pick the store up by 5% ...”. “I obviously gave Ms Fisher plenty of warning to try and meet her targets for the first time, after at least 6 months as manager and still had never got anywhere near her targets. Targets are set by nearly every retail store no matter what products they sell.”

• In relation to the Secret Santa gift: “I had no idea who gave this to me ... It didn’t bother me at all, it was the other staff who attended the luncheon who were more shocked and expressed to me how disrespectful it was to give that to me...”

[37] In cross-examination, Mr Bryant:

• Said that business was falling at Ms Fisher’s store by nearly 50% “... and after the conversations I had with Ms Fisher and my management had with Ms Fisher, I felt it was a very appropriate time for Mr Wooldridge to dismiss Ms Fisher.” 55



• Repeated that Mr Wooldridge was the decision maker in the dismissal. 56



• Agreed that he told Ms Fisher to improve the stores takings. 57



• Said that reinstating Ms Fisher would be difficult for operational reasons in that her duties were now being performed by others. 58



• Said that payment of compensation to Ms Fisher would not threaten the viability of his business. 59

Ms Danzey

[38] Ms Danzey gave sworn evidence and submitted a witness statement. 60 In her statement, Ms Danzey said that she became the manager of the Morayfield store on 14 February 2010. “In taking over from Jazz Fisher I did not find the transition very smooth as a lot of customers had gotten to know her and were not pleased with my replacing her. A couple of days later, Jazz herself telephoned the store and gave me what she considered a warning, telling me that I best look out for myself as I was not likely to last otherwise. It has taken a lot of effort to get to know the regulars, with one younger guy only returning recently because ‘his friend was the ex-manager and she was fired for spending the day with her kids’ is what he had told me.”

[39] On taking up her position, she found many issues with stock including incorrect pricing, lack of security tags and other problems. Some products were not in their proper sections. She later discovered that some customers had been given higher discounts than they were entitled to.

[40] “Another issue with Totally Adult is the fact that the computers are already at full capacity with programs needed to run the systems we use, on my first day I had lost a couple of customers because the system was too slow and on Monday the 15th of February computer technician Wes Purdy had to delete programs and photos which had been uploaded to the computer without permission and against company policy as stated in or contracts we sign before employment. I believe that following protocol allows you to keep your job as well as having respect for those in positions above you. This in turn gives you respect and creates a happy work environment, with the help of quality staff and encouragement from the area manager, state manager and the boss himself this store is now up to the standards for which we wish for at Totally Adult.”

[41] In her supporting oral evidence, Ms Danzey said that staff were not permitted to give a higher discount than set down by management. 61

[42] In cross-examination, Ms Danzey said that she had worked in both the Caloundra and Morayfield stores. 62 Ms Danzey was asked: “Would you accept that she wasn't giving you a warning about looking after yourself in terms of what management might do to you or anything like that, it was more just looking after yourself in terms of the industry that you are in and that you need to work hard and if you don't you might not have a job?” and replied: “No, not particularly, because she'd said that the reason why she had been dismissed was because she wanted to spend time with her kids. So in other words if I wanted to have a day off I'd get fired.”63

[43] Ms Danzey later clarified her answer by saying that Ms Fisher’s advice had been to “... keep your head down and just work hard. I’d get dismissed otherwise.” 64

[44] The further cross-examination of Ms Danzey covered such matters as the use of the store computer and company policies and procedures. She went on to say that she was given a target of $9000 in sales which has not yet been reached “... but there have been improvements and sometimes we have only just missed.” 65

Submissions

[45] Both parties made oral submissions and relied on the evidence and witness statements and other materials. I have paid regard to the submissions of both Mr Tayler and Mr Bryant in the making of this decision.

Conclusions and Findings

[46] Ms Fisher’s employment was terminated, on the evidence of Mr Wooldridge in particular, on grounds of performance and misconduct. In the actual termination of employment, misconduct was primarily relied upon to justify a summary dismissal without the payment of notice. Mr Wooldridge appeared vague in his evidence as to what constituted misconduct (see paragraph 30 supra). This was also true of the oral submission by Mr Bryant (see the discussion from paragraphs 2282 onwards in transcript). It appears to me that the Company takes the view that when a number of conduct and performance issues are considered in the case of Ms Fisher, those issues conflate into misconduct. I am unable to agree with that assessment.

[47] As the Applicant’s conduct is a reason or part reason given by the Company for the termination, I have to determine for myself whether the impugned conduct occurred and, if so, whether it amounted to a valid reason for termination of employment. In this regard I respectfully agree with the following observations of the Full Bench in King v Freshmore (Vic) Pty Ltd 66:

“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[48] In Container Terminals Australia Limited v Toby 67, a Full Bench of the Australian Industrial Relations Commission said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”68

[49] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 69 said:

“In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ….”

[50] In Qantas Airways Ltd v Cornwall 70, the Full Court of the Federal Court said:

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”

[51] In Edwards v Justice Giudice 71, Moore J said:

“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”

Ms Fisher’s conduct

[52] After a thorough review of the transcript, witness statements, oral evidence and materials, I am unable to discern any action by Ms Fisher which would amount to misconduct. The matters alleged against her, such as not following uniform requirements, the wearing of open toed shoes, the internet issues, stock ordering and so on do not either singly or collectively amount to misconduct in my view, and I so find. I therefore also find that there was no valid reason for the termination of Ms Fisher’s employment based on alleged misconduct.

Ms Fisher’s performance

[53] A number of failures in performance are alleged against Ms Fisher. On the totality of the evidence and materials before me, most of those allegations appear to be made out, but also, some of the allegations appear to relate to relatively minor matters.

[54] Ms Fisher was a good employee overall but appears to have been unable to follow instructions when she did not agree with those instructions totally. This led to conflict with management who, quite rightly, expected their directions to be followed. The total effect was the failure of the company-employee relationship.

[55] The attachment to form F3 referred to at paragraph 9 supra sets out the main allegations relied upon by the Company. These can be summarised as being away on non-working days and not being contactable, not advising Mr Bryant by email when the store was open each day in the morning, talking to a customer on the phone when another customer was awaiting attention at the store, wearing open toed shoes, not following company ordering procedures and wearing the wrong coloured shoes. Added to these allegations during the hearing was a complaint that Ms Fisher allegedly misused the store computer.

[56] I have considered each of the allegations and in relation to them, find that the evidence of Mr Bryant and Mr Wooldridge is to be preferred over that of Ms Fisher. I place much less reliance on the evidence of Mr Kiemann, whose demeanour did not impress me. However, that does not mean that the Company’s response to Ms Fisher’s breaches did not constitute a harsh, unjust or unreasonable termination of employment. The evidence of Ms Greig and Ms De Bruin, struck me as being reliable, particularly in their portrait of the Company’s management practices. I have no reason to doubt the truthfulness of Ms Danzey’s evidence.

[57] I now turn to the question whether the dismissal of Ms Fisher was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”

[58] In Byrne v Australian Airlines 72, McHugh and Gummow JJ of the High Court said:

“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.”

[59] The question of valid reason is dealt with above.

[60] It is apparent from the materials and evidence that Ms Fisher was notified of the reason(s) for the termination of her employment and I so find.

[61] It is further clear on the materials and evidence that she was not given an opportunity to respond and I so find.

[62] The Company did not refuse to allow Ms Fisher to have a support person present as discussions relating to the dismissal did not occur and I so find.

[63] I am satisfied that Ms Fisher was warned about unsatisfactory performance during discussions with Mr Wooldridge, Mr Kiemann and Mr Bryant. Those warnings were informal but should have left her in no doubt as to the Company’s view of her performance and I so find.

[64] The size of the employer’s enterprise is a factor which is likely to have impacted on the procedure followed in effecting Ms Fisher’s dismissal. Here, I have taken account of Mr Wooldridge’s then recent appointment to his current position. On what is before me, I conclude that the Company is a small to medium-sized operation with limited access to advice on industrial relations matters. This would have impacted significantly on the procedures followed by Mr Wooldridge in effecting the dismissal of Ms Fisher and I so find.

[65] It is not in issue that the Company does not employ dedicated human resources management specialists or possess any particular expertise within the enterprise relating to human resources management and I so find.

[66] Section 390 of the Act provides:

“390 When FWA may order remedy for unfair dismissal

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

(a) FWA 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) FWA may make the order only if the person has made an application under section 394.

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

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

(b) FWA 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.”

[67] In all the circumstances of this case, reinstatement would in my view be impractical. Ms Fisher seeks reinstatement but I am unable to see how the employment relationship could be restored given her views of Company management and Mr Bryant in particular. I therefore find that reinstatement is not an appropriate remedy in this case.

[68] Where reinstatement is not ordered, the Tribunal may order the payment of monetary compensation. Subsection 392(2) of the Act sets out the criteria for deciding a suitable level of compensation:

“(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) 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 compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWA considers relevant.”

[69] In relation to subparagraph (a), I find that the effect of the order I intend to make will not have any obvious effect on the viability of the Company. This was conceded by Mr Bryant during the hearing. In relation to subparagraph (b), I have taken into account the relatively short duration of Ms Fisher’s employment with the Company. In relation to subparagraph (c), I am satisfied that Ms Fisher’s employment prospects with the Company were limited at the time of her dismissal and she would not have continued in the employ of the Company for a significant period. In relation to subparagraph (d), I am satisfied that Ms Fisher has made efforts to mitigate her loss. The provisions set out at subparagraph (e) are not relevant to my consideration in the current case as it appears Ms Fisher has earned little income since her employment was terminated and remains unemployed. She is making efforts by way of seeking additional qualifications to make her more employable. The provisions of subparagraph (f) are not relevant in the current circumstances. In relation to subparagraph (g), I have taken into consideration Ms Fisher’s age, employment prospects and family responsibilities.

[70] Subsection 392(3) of the Act provides that:

“(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.”

[71] In the case before me, I am not satisfied that misconduct occurred and this provision is therefore not relevant to my consideration.

[72] All in all, I find that the termination of Ms Fisher’s employment was harsh and an order will be issued that the Company pay her a total of six weeks wages (less appropriate tax according to law) to be paid at the rate Ms Fisher was earning as at the date of the termination of employment. Should there be any dispute between the parties as to the monetary amount to be paid, the matter can be referred back to me for settlement.

[73] As noted above, the Company is a small to medium-sized business and while I am of the view that the award of the sum above (less appropriate tax) to Ms Fisher will not threaten its viability, I note the provision in s.393 of the Act that an amount ordered in these circumstances may be ordered to be paid in instalments. . Accordingly, I intend to order that the sum awarded to Ms Fisher be paid to her by the Company in two equal instalments. The first instalment is to be paid no later than 14 days after the date of this decision and the remaining instalment to be paid no later than 28 days after the date of this decision.

COMMISSIONER

Appearances:

A Tayler, solicitorfor J Fisher.

M Bryant for M & D Employment Services Pty Ltd.

Hearing details:

2010.

Brisbane:

August 18, 19;

September 15.

 1   Exhibit Fisher 1

 2   Exhibit Fisher 2

 3   Transcript PN226.

 4   Transcript PN237.

 5   Transcript PN274.

 6   Transcript PN284.

 7   Transcript PN286.

 8   Transcript PNs308 and 309.

 9   Transcript PNs320-321.

 10   Transcript PN359.

 11   Transcript PN360.

 12   Transcript PNs361-362.

 13   Transcript PN374.

 14   Transcript PN376.

 15   Transcript PN379.

 16   Transcript PN383.

 17   Transcript PN392.

 18   Transcript PN394.

 19   Transcript PN485.

 20   Transcript PN496.

 21   Transcript PN497.

 22   Exhibit Fisher 3

 23   Transcript PN660.

 24   Ibid.

 25   Transcript PN666.

 26   Transcript PN712.

 27   Exhibit Fisher 4

 28   Transcript PN794.

 29   Transcript PN829.

 30   Exhibit Bryant 2

 31   Transcript PN1090.

 32   Transcript PNs1098, 1103 and 1105.

 33   Transcript PN1202 and following.

 34   Transcript PN1273.

 35   Transcript PN1274.

 36   Transcript PNs1317 and 1319.

 37   Transcript PN1318.

 38   Transcript PN1340.

 39   Transcript PN1340-1343.

 40   Transcript PN1393.

 41   Transcript PN1395.

 42   Exhibit Bryant 3.

 43   Transcript PN1417.

 44   Transcript PN1418.

 45   Transcript PN1425.

 46   Transcript PN1426.

 47   Transcript PN1481.

 48   Transcript PNs1497-1498.

 49   Transcript PN1542.

 50   Transcript PNs1559-1561.

 51   Transcript PN1587.

 52   Transcript PNs1589-1890.

 53   Transcript PNs1602-1605.

 54   Exhibit Bryant 4.

 55   Transcript PN1732.

 56   Transcript PNs1738-1739 and following.

 57   Transcript PN1748.

 58   Transcript PN1894.

 59   Transcript PN1905.

 60   Exhibit Bryant 5.

 61   Transcript PN2004.

 62   Transcript PN2028.

 63   Transcript PN2049.

 64   Transcript PN2051.

 65   Transcript PN2145.

 66   Print S4213, 17 March 2000.

 67   Print S8434, 24 July 2000.

 68   Ibid at para 15.

 69 (1995) 62 IR 371 at 373.

 70 [1998] FCA 865.

 71 [1999] FCA 1836.

 72 (1995) 185 CLR 410.

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