Jennifer-Anne Montgomery v Rex Braddon Pty Ltd T/A the Rex Hotel

[2016] FWC 1188

[2016] FWC 1188

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jennifer-Anne Montgomery
v
Rex Braddon Pty Ltd T/A The Rex Hotel
(U2015/4734)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 24 FEBRUARY 2016

Application for relief from unfair dismissal - dismissal found to be fair - application dismissed.

[1] On 10 April 2015 Ms Jennifer-Anne Montgomery (the Applicant) filed an application under s.394 of the Fair Work Act 2009 (the FW Act) alleging that the termination of her employment by Rex Braddon Pty Ltd T/A The Rex Hotel (the Respondent) on 26 March 2015 was harsh, unjust or unreasonable.

[2] Ms Montgomery commenced employment with the Respondent on 29 January 2014 as Executive Housekeeper with overall responsibility and management of the Housekeeping Department at the Rex Hotel. Ms Montgomery was dismissed on 26 March 2015, with the reason cited for her dismissal being performance issues.

[3] The application was heard by the Fair Work Commission (the Commission) on 9 and 30 July 2015. Mr Stefan Russell-Uren of United Voice represented Ms Montgomery, while Mr James Macken of Counsel appeared with permission for the Respondent.

[4] Ms Montgomery gave evidence on her own behalf. Mr Darren Perry, the Respondent’s General Manager at the time of Ms Montgomery’s dismissal; Ms Jackie Gregory, an Assistant Manager with the Respondent; and Mr John Russell, a Director of the Respondent, all gave evidence for the Respondent.

[5] For the reasons outlined below, I have found that Ms Montgomery’s dismissal was not harsh, unjust or unreasonable. Accordingly, her application is dismissed. An order to that effect will be issued in conjunction with this decision.

The Applicant’s case

[6] Ms Montgomery submitted that she was dismissed unfairly on the grounds that there was no valid reason for her dismissal, that she was not notified of the actual reason for her dismissal and that she was not warned about her performance. At the hearing, Ms Montgomery reiterated those reasons contending that the budget analysis relied upon by the Respondent was incorrect by a figure of up to $2000 per week across the period May 2014 until Ms Montgomery’s termination on 26 March 2015.

[7] As to remedy, Ms Montgomery did not seek reinstatement but rather compensation for the period from the date of her dismissal.

[8] Key aspects of Ms Montgomery’s witness statement 1 were that:

• she had a meeting with Mr Perry on 25 March 2015 during which he indicated that the Respondent’s owners were not happy and wanted to dismiss her immediately as a result of carpet stains, marks on walls and minor damage in the Hotel;



• on 26 March 2015 Mr Perry requested to speak with Ms Montgomery at the end of her shift, at which time she was dismissed with immediate effect;



• during that meeting Mr Perry indicated that Ms Montgomery could stay on as a supervisor rather than as Executive Housekeeper but she refused that offer as it involved a substantial drop in duties and employment status;



• Mr Perry did not give a reason at their meeting of 26 March 2015 as to why she had been dismissed;



• she had never been given a warning, though she acknowledged that she had in the ordinary course of her employment been asked to deal with cost overruns in the Housekeeping Department;



• Mr Perry implemented significant changes to the Housekeeping Department in late 2014 which involved retraining the housekeeping staff and resulted in significantly more attention to detail;



• when she commenced working at the Rex Hotel the standard of the rooms was shocking;



• about six weeks after she commenced employment with the Respondent, the then General Manager indicated to her that the owners were dissatisfied with the cost overruns in the Housekeeping Department, adding that she was directed to haul back the time spent in rooms and consequently reduce standards;



• as departmental head she was not given a weekly budget, with her budget determined by time rather than dollars;



• there was a budget blowout in December 2014 and January 2015 which was largely due to the retraining of staff;



• there were also budget overruns in February and March 2015 relating to individual rooms and public area cleaning, with the overruns due to the fact that the time allocated to public area cleaning was not attributed to Ms Montgomery’s budget; and



• she had unsuccessfully applied for a number of positions following her dismissal.

[9] Under cross examination Ms Montgomery attested, among other things, that:

(a) there were regular changes to the Respondent’s budget reporting system 2;

(b) a number of tasks performed by cleaners were not included in the standard cleaning times per room, e.g. vacuuming of hallways 3;

(c) she had nothing to do with the setting of the budget for the Housekeeping Department 4;

(d) the cost of supervision was incorporated in the average budget cost for cleaning rooms 5;

(e) the quality of the cleanliness of rooms was occasionally discussed with her, with Ms Montgomery acknowledging that she was trying to raise the standard and achieve the required standard as far as possible within budget but that it was a very slow process 6;

(f) she was responsible for ensuring that the work of the Housekeeping Department was done within budget 7;

(g) she did not infer from Mr Perry’s comment that it would be “her head on the chopping block” that he was putting her on notice 8;

(h) budget overruns were a persistent irritant during her period of employment with the Respondent and that she was asked to stay back after monthly management meetings to discuss budget results 9;

(i) following a number of those meetings Mr Russell signalled that budget overruns were a serious issue, acknowledging that thrust of what he was putting to her was that the constant budget overruns were unacceptable 10;

(j) despite this the budget overruns continued right up until the end of her employment 11; and

(k) she could not recall the exact number of discussions about budget during her period of employment but acknowledged that it was possibly fair to say that it was a large number 12.

The Respondent’s case

[10] The Respondent contended that Ms Montgomery’s employment was terminated as a result of her sustained underperformance, particularly with respect to her inability to meet the budget requirements of the Housekeeping Department and her inability to effectively manage and lead the Housekeeping team.

[11] Mr Perry deposed 13, inter alia, that:

• shortly after he commenced employment with the Respondent it became clear to him that Ms Montgomery was failing to meet the requirements of her role in a number of respects, including her inability to produce a consistent industry-standard of room cleanliness;



• he formed a preliminary view at that time that Ms Montgomery lacked the management and leadership skills necessary to successfully coordinate and lead the Housekeeping Department;



• at a meeting with Ms Montgomery on 15 January 2015 he highlighted his and the owners’ concerns about the budget blowouts in the Housekeeping Department;



• he met with Ms Montgomery again on 19 January 2015 to discuss issues within the Housekeeping Department and followed up that meeting with an email confirming the matters discussed;



• he had a further meeting with Ms Montgomery on 23 January 2015 where he again discussed his concerns, adding that Ms Montgomery’s attitude at that meeting was of great concern to him because it indicated to him that she was not prepared to address the continual budget overruns in the Housekeeping Department;



• on 17 February 2015 he met yet again with Ms Montgomery to discuss his concerns regarding her performance and that during the course of that meeting he and Ms Montgomery reviewed the Housekeeping Department’s budget expenses for the previous seven weeks;



• at the conclusion of the meeting he recalled saying to Ms Montgomery words to the effect “You need to be able to explain where the wages are going and you need to be accountable for staff wages and the departments operations”;



• when Ms Montgomery arrived at work on 26 March 2015 he indicated to her that he wished to speak to her at the completion of her shift and advised her of her right to have a third party present at the meeting;



• when moving to that meeting he noticed Ms Montgomery’s partner sitting in the foyer of the Hotel, prompting him to advise Ms Montgomery that her partner could attend the meeting if she wished to have a third party present;



• at that meeting he reiterated his concerns and offered Ms Montgomery a supervisory role which she rejected, adding that during the meeting he stated “… due to these continuous concerns with the management of the Housekeeping Department, mainly the issue of you being unable to operate the department within budget, the Hotel has lost confidence in your ability to manage the department and you are to be dismissed”; and



• he did not recall having a meeting with Ms Montgomery on 25 March 2015.

[12] Key aspects of Mr Perry’s oral evidence were that:

(a) 17 minutes was allocated to clean a room where the occupant had not checked out, with 34 minutes allocated to clean a room where the occupant had checked out 14;

(b) the budgeted costs included in the Housekeeping Weekly Analysis for the week commencing 26 May 2014 did not include a component for supervision, resulting in the analysis for that week being $2000 off and subsequent weekly reports being similarly affected 15;

(c) he did meet with Ms Montgomery on 15, 19 and 23 January 2015 16;

(d) he was in charge of Housekeeping for January 2015 17;

(e) he had warned Ms Montgomery that she would be dismissed if her performance did not improve in the context of the various conversations that he had with her 18;

(f) in circumstances where he had previously dismissed an employee he had warned the employee in writing, had advised them of both the termination meeting and the scope to have a support person in writing, adding that this was industry practice; and

(g) this did not happen in this case 19.

[13] Ms Gregory deposed 20, inter alia, that:

• she recalled the Hotel Manager continually raising issues and concerns regarding the budget overruns of the Housekeeping Department and the inconsistency of the cleanliness of the accommodation and common areas;



• at the daily morning meetings and weekly management meetings the most frequent concern raised regarding Ms Montgomery’s performance was with respect to her inability to meet the budget constraints set for the Housekeeping Department;



• Ms Montgomery would often respond to these concerns by saying that the Housekeeping Department was understaffed;



• during the daily morning meetings she witnessed many conversations when Ms Montgomery was told that the performance levels of the Housekeeping Department were not acceptable and advised on how the issues could be resolved;



• shortly after commencing with the Respondent, Mr Perry took it upon himself to overhaul the Housekeeping Department;



• she estimated that Mr Perry spent on average six hours a day, five days a week between January 2015 and March 2015 providing training and support to Ms Montgomery;



• in early March the floor on level 2 of the Hotel was re-carpeted and shortly thereafter the carpet was damaged by bleach marks left by cleaning staff with that issue and the issue of extensive damage to walls discussed in the daily morning meetings on several occasions prior to 25 March 2015;



• Ms Montgomery was asked to stay back after the daily morning meetings at least once a week to discuss the Housekeeping Department budget; and



• the cleaning time allocated to rooms had been in place for at least the previous 12 months.

[14] Under cross examination, Ms Gregory reiterated several of aspects of her witness statement. In addition, she attested that she would not describe Ms Montgomery’s performance as effective and efficient 21.

[15] Mr Russell deposed in his two witness statements 22 that concerns regarding the quality and the effectiveness of the Housekeeping Department were first raised with him by the Hotel’s General Manager and Assistant Manager on or around June 2014, with those concerns including concerns about continued budget overruns resulting from over staffing and the inefficient cleaning of rooms. Mr Russell also deposed that Ms Montgomery was invited to attend two Weekly Manager Meetings in August 2014 to discuss the overall operation, procedures, staff management and budget overruns of the Housekeeping Department, adding that Ms Montgomery was told by the General Manager at those meetings that these issues had to be addressed as they were not acceptable and they directly reflected upon her unsatisfactory performance in the role of Executive Housekeeper. Mr Russell also disputed aspects of Ms Montgomery’s witness statement and stated that following her dismissal the Housekeeping Department was operating within budget requirements. In his supplementary witness statement, Mr Russell provided further explanation about the Housekeeping Weekly Analysis reports, deposing that the budgeted cost for rooms provided the budget for all costs associated with the cleaning and the supervision duties with respect to hotel rooms and public areas.

[16] Under cross examination Mr Russell was questioned in detail about specific Housekeeping Weekly Analysis reports, with the questions focusing on what was incorporated in particular costings and how those costings were derived. Beyond that, key aspects of Mr Russell’s oral evidence included that:

(a) the standard of presentation of the Hotel and the efficiency of the Housekeeping team had improved since Ms Montgomery’s dismissal, adding that there had been no changes to the allocated times for cleaning rooms following Ms Montgomery’s dismissal 23;

(b) the Housekeeping Weekly Analysis report was a dynamic document that had evolved over four or five years but had not changed in its base form 24;

(c) the cost of supervision was included in the average cost of cleaning per room 25;

(d) there were meetings in August 2014 where the Hotel Manager spoke to Ms Montgomery and gave her direction as to what she was required to address, adding that Ms Montgomery was not given a warning in writing at that stage 26; and

(e) he had taken Mr Perry to task for producing a budget for January 2015 which was $20,000 over the limit 27.

The statutory framework

[17] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Ms Montgomery is a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss.385 and 387 which read as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWC 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.

387 Criteria for considering harshness etc.

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

[18] There is no dispute that the Ms Montgomery was dismissed, so s.385(a) of the Act is satisfied. Ms Montgomery contended that her termination was harsh, unjust or unreasonable, so s.385(b) is relevant. The Respondent is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether the Ms Montgomery was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).

Was the dismissal harsh, unjust or unreasonable?

[19] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will address each of those criteria separately.

(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)

[20] In Rode v Burwood Mitsubishi (Rode’s Case) 28a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd.29 The following is an extract from the Full Bench’s decision in Rode’s Case.

“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. 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, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”

[21] Ms Montgomery submitted that there was no valid reason for her termination and that to the extent that:

• her dismissal related to the budget deficits for the Housekeeping Department, those results were wholly or substantially attributable to factors beyond her control; and



• the actual reason for her dismissal was the bleach stains on the recently laid carpet, she took adequate steps to prevent a repetition of the error.

[22] In her closing submissions, Ms Montgomery highlighted the emphasis placed by the Respondent on the budget performance of the Housekeeping Department and Mr Perry’s oral evidence that for the period May 2014 through to her dismissal in March 2015 the budget analysis was out by a figure of up to $2000 per week as a result of not providing for the cost of supervision.

[23] The Respondent submitted that there was a valid reason for Ms Montgomery’s dismissal relating to her capacity, adding that Ms Montgomery was unable to perform the work to a satisfactory level and was unable to perform the work she was employed to do. The Respondent described the reasons for Ms Montgomery’s dismissal as “sound, defensible and well founded”.

[24] A key issue in dispute in this matter goes to the accuracy of the Housekeeping Weekly Analysis reports, with Ms Montgomery’s representative submitting that the reports were up to $2000 per week out as a result of not providing for the cost of supervision. The Respondent however submitted that the cost of supervision was factored into the average cost of cleaning per room of $13. The Housekeeping Weekly Analysis for 8 October 2014 30 was explored in some detail during the cross examination of Mr Russell. The report for the week commencing 6 October 2015 shows that on 8 October 2015 there were 35 rooms stays (where the occupant had not checked out) and 34 room checkouts, with the budgeted cost for room cleaning shown as $897.00.The evidence before the Commission indicates that either 16 or 17 minutes were allocated to clean rooms in respect of room stays and 34 minutes for check outs. It was also accepted that the average hourly rate of pay for cleaners for costing purposes was $22 per hour and that the equivalent rate for supervision was $25 per hour. Applying 16 minutes for room stays and 34 minutes for room checkouts to the data for 8 October 2014 results in a requirement for 28.6 cleaning hours, which at $22 per hour totals to $629.20. I note that this is less than the budgeted amount of $897.00 for 8 October 2015. Supervision for Hotel rooms and public areas for 8 October 2015 was identified as 11 hours, which at $25 per hour equals $275. When that amount is added to the cost of the required cleaning hours, it totals $904.20 – just over the budgeted amount of $897.00. This result is replicated for the other days referred to in cross examination, though in some cases the budgeted amount is understated, e.g. in one case (9 June 2014) the amount understated is around $188 out using the above methodology.

[25] This analysis supports a finding that supervision costs were included in the budgeted cleaning cost for rooms despite not being identified as a separate amount in the Housekeeping Weekly Analysis. This is also consistent with Ms Montgomery’s oral evidence that the cost of supervision was incorporated in the average budget cost for cleaning rooms. In other words, the weekly reports are unlikely to be out by the amount suggested by Ms Montgomery’s representative.

[26] Further, an analysis of the Housekeeping Weekly Analysis reports for the duration of Ms Montgomery’s employment indicates that over the fourteen months that she was employed by the Respondent there were only four weeks during which a surplus was achieved. Excluding the period in late December 2014 when Ms Montgomery was on leave and January 2015 when Mr Perry was effectively in charge of the Housekeeping Department, there were more than 40 weeks where the Housekeeping Department reported a budget deficit. The budget deficits over that period, again excluding part of December 2014 and January 2015, totalled around $68,000, compared to surpluses totalling around $1260 over the same period. This analysis points to chronic deficits across the period of Ms Montgomery’s employment. I note that Ms Montgomery acknowledged in her evidence that she was responsible for ensuring that the work of the Housekeeping Department was done within budget, albeit she pointed to the problems of doing so.

[27] Beyond this there were also on-going concerns about the standard of cleanliness achieved under Ms Montgomery’s watch. Even Ms Montgomery acknowledged in her oral evidence that she was trying to raise the standard of cleaning to achieve the required standard as far as possible within budget but that it was a very slow process.

[28] Taken together, the above analyses support a finding that there was a valid reason for Ms Montgomery’s dismissal which related primarily to her inability to meet one of her key responsibilities, i.e. to have the Housekeeping Department operate within budget. Drawing on the language in Selvachandran,that reason was not “capricious, fanciful, spiteful or prejudiced.”

(b) Whether the person was notified of that reason

[29] Ms Montgomery submitted that she was not notified of the reason for her dismissal prior to it taking place, adding that she only became aware that poor performance was the reason for her dismissal when she received the Respondent’s Form F3 – Employer Response to Unfair Dismissal Application.

[30] The Respondent submitted that Ms Montgomery was notified of the reason for her dismissal in explicit, plain and clear terms in the meetings held on 23 January 2015, 17 February 2015 and 26 March 2015.

[31] In Crozier v Palazzo Corporation Pty Ltd 31the Full Bench established the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their 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 170CG (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.”

[32] Ms Montgomery gave evidence that budget overruns were a persistent irritant during her period of employment with the Respondent, that Mr Russell had signalled to her that budget overruns were a serious issue and were unacceptable and that there were a large number of discussions about budget during her period of employment. Further, Mr Perry’s actions in effectively taking over the management of the Housekeeping Department in December 2014 and his various discussions with Ms Montgomery in 2015 would have undoubtedly signalled to Ms Montgomery the Respondent’s concerns regarding her performance and that of the Housekeeping Department. More particularly, Mr Perry’s email of 19 January 2015 to Ms Montgomery and others in which he states “… when we finalise the house keeping department revamp, it then becomes your head on the chopping block Jennifer [Ms Montgomery] …” is unambiguous in terms of the implications of continued poor performance. In those circumstances, it is difficult to accept Ms Montgomery’s submission that she only became aware of the reason for her dismissal via the Respondent’s Form F3. Based on the material before the Commission, I consider it likely that the Respondent simply ran out of patience in waiting for Ms Montgomery to have the Housekeeping Department perform to an acceptable standard within budget.

[33] The above analysis supports a finding that Ms Montgomery was notified of the reason for her dismissal, albeit that this occurred over a series of meetings.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[34] Ms Montgomery submitted that she was not warned about her performance and that nor was she given advance warning that her performance was in question. Ms Montgomery further submitted that there was no indication that her termination was looming.

[35] The Respondent submitted that Ms Montgomery was given an opportunity to respond to the reasons related to her conduct and to address those issues at the abovementioned meetings with Mr Perry in early 2015.

[36] The Full Bench in Royal Melbourne Institute of Technology v Asher 32 (Asher) in discussing considering whether the employee in that case had been given an opportunity to respond stated as follows:

“[26] The Full Bench in Osman described this obligation as requiring the employer to take reasonable steps to investigate the allegations and give the employee a fair chance of answering them. It adopted comments of Chief Justice Wilcox in Gibson v Bosmac Pty Ltd, approved by Justice Northrop in Selvachandran, where Chief Justice Wilcox said:

Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particularly formality. It is intended to be applied in a practical commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.” (Citations not included, underlining added)

[37] Drawing on Asher and the material before the Commission supports a finding that Ms Montgomery was aware of the Respondent’s concerns regarding her performance as a result of the various discussions had with her by a previous Hotel Manager, Mr Russell and Mr Perry over a period of several months and that she did have an opportunity in those discussions to respond to those concerns. Indeed, Ms Gregory’s evidence was that Ms Montgomery would often respond to the concerns raised with her by saying that the Housekeeping Department was understaffed. This issue is also discussed in further detail below in respect of s.387(e) of the Act.

(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

[38] Ms Montgomery contended that she was not advised of the nature of the meeting on 26 March 2015 when she was dismissed and that she was not told a support person may be brought to the meeting, nor did she understand that one may be necessary. Ms Montgomery further submitted that the dismissal meeting was conducted by way of ambush.

[39] The Respondent contended that Ms Montgomery was advised that she could bring a support person to the meeting of 26 March 2015 but chose not to do so notwithstanding that her partner was present at the Respondent’s premises at the time.

[40] As noted in the Explanatory Memorandum to the Fair Work Bill 2008 there is no positive obligation on an employer to offer an employee the opportunity to have a support person. Specifically the Explanatory Memorandum stated that:

“1542. … 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. It will be one factor FWA must consider when determining whether a dismissal was unfair, having regard to all the circumstances, including the capacity of the employee to respond to the allegations put to him or her without such a support person being present.”

[41] In this case, there is no suggestion that Ms Montgomery requested a support person to attend any of the meetings she had with Mr Perry, nor was there any suggestion that Ms Montgomery would be unable to respond to the concerns regarding performance without such a support person being present.

[42] Against that background, I consider this factor to be a neutral consideration.

(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[43] Ms Montgomery submitted that she was not given a warning and consequently had no opportunity to address the supposed underperformance.

[44] The Respondent submitted that its performance concerns regarding Ms Montgomery should not have come as a surprise to her, contending that Ms Montgomery had been subject to prior warnings about her unsatisfactory performance and afforded ample opportunity to address the Respondent’s concerns. The Respondent further submitted that Ms Montgomery was aware of the precise nature of the deficiencies in her performance and of the repercussions if you fail to address the Respondent’s performance concerns, i.e. she was aware that her employment would be terminated.

[45] It is not disputed that Ms Montgomery was not given a written warning regarding her performance. However, as mentioned above, Ms Montgomery gave evidence that budget overruns were a persistent irritant during her period of employment with the Respondent, that Mr Russell had signalled to her that budget overruns were a serious issue and were unacceptable and that there were a large number of discussions about budget during her period of employment.

[46] Other material before the Commission which points to Ms Montgomery being aware or being made aware of the Respondent’s concerns regarding her performance includes:

• Ms Montgomery’s acknowledgement that concerns regarding the performance of the Housekeeping Department were raised with her around June and August 2014 33;



• Mr Perry’s email of 23 December 2014 to Ms Montgomery advising her of his intention to implement training to address the “sub standard cleaning of our accommodation” 34;



• Mr Perry’s email of 19 January 2015 to Ms Montgomery and others which states “… when we finalise the house keeping department revamp, it them becomes your head on the chopping block Jennifer [Ms Montgomery] …” 35; and
• Mr Perry’s email of 17 February 2015 to Ms Gregory in which he states:

“Jennifer was a bit stumped as to why and where, but knows that those numbers are not going to be accepted.

I have explained and broke down the figures, we have had to in major issues, a group of three on one floor, with the Deaf girl Sarah who even though is subsidized, is not up to speed. I explained quite bluntly, Sarah or you won’t have a job shortly, work out who you would prefer.

Second issue was a massive amount of time over, non-training related, on level 3, where Jennifer was yesterday. I asked her what she actually did yesterday, her back got straight up, and I explained whether it was me, or the owners, that question is going to be asked.

…

I have outlined she has two courses of action, sit and wait to get disciplined over this, or proactively address the stuff up in an email to John and us, highlighting what she did yesterday, where the expenses were, what she has realised or noted, and most importantly what she is doing for the rest of the week to rectify.

I have offered to review the draft this once, and add anything extra as feedback for her, before it goes to owners and us.” 36

[47] In light of the above, I am satisfied that the Respondent’s concerns about the unsatisfactory performance of the Housekeeping Department and Ms Montgomery’s performance were raised with Ms Montgomery over a period of several months prior to her dismissal. This factor does not favour Ms Montgomery.

(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

(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

[48] Ms Montgomery submitted that the Respondent was not a small enterprise, that it operated a significant hotel in the Australian Capital Territory and that it had the benefit of advice from an industry association.

[49] The Respondent submitted that it does not employ a dedicated human resource specialist and that the process it applied leading up to Ms Montgomery’s dismissal was reflective of this. The Respondent further submitted that nevertheless the process it applied was sound and afforded Ms Montgomery procedural fairness.

[50] While the Respondent did not set out its concerns regarding the performance of the Housekeeping Department and Ms Montgomery in writing or prepare written notes of its discussions with Ms Montgomery, as noted above it did bring to Ms Montgomery’s attention its concerns in this regard. While a more structured and rigorous approach would have been advisable, there is nothing before the Commission to suggest that the Respondent’s size and the absence of dedicated human resource specialists impacted on the procedures followed. I therefore consider these factors to be neutral considerations.

(h) Any other matters that FWC considers relevant

[51] Ms Montgomery did not point to any other matters which the Commission should take into account.

[52] The Respondent highlighted that Ms Montgomery had only been employed for a short period of time, one year and two months, and had a history of unsatisfactory performance. I do not consider Ms Montgomery’s relatively short period of employment with the Respondent to be a relevant consideration in determining whether her dismissal was harsh, unjust or unreasonable.

[53] Accordingly, there are no other matters which the Commission considers relevant.

Conclusion

[54] Drawing on the above analysis, I find that there was a valid reason for Ms Montgomery’s dismissal, that Ms Montgomery was notified of that reason and given an opportunity to respond to that reason over a period of several months, and that there are no other relevant matters. Beyond this, I find that the remaining criteria in s.387 of the Act are neutral considerations in this case.

[55] Having considered all of the criteria in s.387 of the Act I find that Ms Montgomery’s dismissal was not harsh, unjust or unreasonable. Accordingly, her application is dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

S. Russell-Uren for the Applicant.

J. Macken of Counsel for the Respondent.

Hearing details:

2015.

Canberra:

July 9, 30.

 1   Exhibit RU2

 2   Transcript at PN51

 3   Ibid at PN91-97

 4   Ibid at PN122

 5   Ibid at PN129-132

 6   Ibid at PN173

 7   Ibid at PN193

 8   Ibid at PN307

 9   Ibid at PN313-317

 10   Ibid at PN337-349

 11   Ibid at PN351-353

 12   Ibid at PN395-396

 13   Exhibit M6

 14   Transcript at PN544

 15   Ibid at PN657-690

 16   Ibid at PN709-712

 17   Ibid at PN763

 18   Ibid at PN850-853

 19   Ibid at PN855-861

 20   Exhibit M8

 21   Transcript at PN1094

 22   Exhibits M9 and M10

 23   Transcript at PN1189-1192

 24   Ibid at PN1296

 25   Ibid at PN1404

 26   Ibid at PN1484-1486

 27   Ibid at PN1495-1503

 28   Print R4471

 29 (1995) 62 IR 371

 30   Exhibit RU1 at page 37

 31 (2000) 98 IR 137

 32 (2010) 194 IR 1

 33   Transcript at PN1559

 34   Exhibit RU1 at page 63

 35   Ibid at page 64

 36   Ibid at pages 69-70

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