Josephine La Spina v Oreana Project Management Pty Ltd

[2019] FWC 1788

[2019] FWC 1788

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Josephine La Spina
v
Oreana Project Management Pty Ltd
(U2018/9915)

COMMISSIONER MCKINNON MELBOURNE, 19 MARCH 2019

Application for unfair dismissal remedy.

Introduction

[1] Josephine La Spina was employed by Oreana Project Management Pty Ltd (Oreana) as a Contracts Administrator from 9 April 2015 until 4 September 2018 when her employment was terminated on the grounds of conduct and performance.

[2] On 21 September 2018, La Spina applied to the Commission for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).Shesays she was not treated equally by her manager compared to another employee. She also says no processes or procedures were implemented for her to follow and she was not given training or development to assist her.

[3] Oreana denies that the dismissal was unfair. It says that over a prolonged period, La Spina did not meet the performance standards of her role in relation to communication with stakeholders, following reasonable management instructions and following procedures. It says it followed due process in dealing with the concerns.

[4] The matter was conciliated on 23 October 2018 and was not settled. After seeking the views of the parties, I determined that a determinative conference would be the most effective and efficient way to resolve the matter. A conference was convened on 14 January 2019 in Melbourne.

Preliminary matters

[5] The application was filed within the standard 21 day time limit required by the Act.

[6] Under section 382 of the Act, a person is protected from unfair dismissal if, at the relevant time:

•  They have completed at least the minimum employment period; and

•  They are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the “high income threshold”.

[7] There is no dispute that La Spina’s period of employment with Oreana was longer than the minimum employment period. La Spina’s annual income of $65,000 gross plus superannuation was less than the high income threshold. 1 La Spina is protected from unfair dismissal.

[8] Under section 385, a person has been unfairly dismissed if the Commission is satisfied that they have been dismissed; the dismissal was harsh, unjust or unreasonable; the dismissal was not consistent with the Small Business Fair Dismissal Code and was not a case of genuine redundancy. 2

[9] There is no dispute that La Spina was dismissed from her employment. At the time of the dismissal, Oreana employed approximately 20 employees. 3 The dismissal could not have been consistent with the Small Business Fair Dismissal Code4 because Oreana was not a small business employer at the relevant time.5

[10] There is no evidence of redundancy in this matter. I find that the dismissal was not a case of genuine redundancy.

[11] The question is whether the dismissal was harsh, unjust or unreasonable.

Relevant history

[12] On 22 and 29 June 2016, La Spina made complaints about her interactions with a co-worker, Phoebe Soeteman. The first complaint was made to her Manager, Rene Boey, outing concerns about constantly being micro-managed, unfairly accused of not updating company systems, having to duplicate work and being degraded and talked over. 6 The second complaint was sent to Oreana’s Director, Tony Sass, after a meeting on 24 June 2016 in which La Spina was requested to resubmit her concerns. It accused Soeteman of being “demanding and extremely dictatorial” toward her and reiterated the concerns identified in the complaint of 22 June 2016.7 Other than the meeting on 24 June 2016, there is no evidence of any response to the complaints by Oreana.

[13] On 25 May 2017, there was a terse exchange between La Spina and Boey on email about La Spina’s approach to completion of a task, with Boey accusing her of causing “wasted effort and time for three people”. La Spina sent a record of the exchange to Kirstin Miles, Oreana’s then HR Business Partner, complaining that Boey had raised her voice and seeking to demonstrate that Boey did not understand what La Spina was asking. 8

[14] On 10 July 2017, there was an incident involving La Spina and a new receptionist, Rochelle Austin. 9 La Spina was upset about the content of a phone message taken by Austin. She approached Austin on her way to the toilet in an angry manner. An email sent that day from another receptionist, Karley Rishworth, records La Spina coming out and confronting Austin, prompting Austin to say to Rishworth “Josie scares me”.10

[15] According to Boey’s record of the incident, La Spina responded to Boey’s questioning about the incident to the following effect:

“They’ve wasted my time, Graeme’s time, construction’s time and my time. Your team is useless. You need to train them more on how to take messages.”

[16] La Spina denies saying the team was ‘useless’. Boey says the incident occurred despite La Spina having been told the previous week not to approach any of the new staff. La Spina agrees with Boey that she was given such a direction, but says it was issued after the incident with Rochelle. 11 Her evidence is not consistent on the timing of the instruction and I prefer Boey’s account of these events. I find that prior to the incident with Austin, La Spina was told not to approach new staff members, which included Austin. I find that despite the direction, she approached Austin and took her to task. It is not to the point that she was ‘on her way to the toilet’ when the confrontation occurred. The exchange was initiated by La Spina in disregard for Boey’s direct instruction.

[17] On 1 August 2017, there was an incident between La Spina and Boey where Boey asked La Spina where to find ‘working drawings’ and La Spina refused to answer the question, pointing to the Client Liaison Coordinators (one of whom was Soeteman) saying “you employed them out there, so they should know” and “go ask them”. There is a dispute about what happened next. Boey says there was a subsequent phone call between them, and La Spina hung up on her. La Spina denies there was any such call. I accept Boey’s evidence that La Spina rang Boey once she had returned to her desk, “told her off” and hung up on her. It is consistent with the contemporaneous record made of the incident on 2 August 2017. 12 It is not in dispute that at some point after the refusal to cooperate with Boey’s request, Boey advised La Spina that her behaviour would affect her performance review.

[18] At approximately 4.45pm on 1 August 2017, La Spina called Miles to her office upset about the altercation with Boey. A communication record of the incident made by Miles records La Spina’s complaint that Boey’s comments were unfair, intimidating and inappropriate and her advice to Miles that she did not want to assist new staff because they were employed to do the job and should be able to source information for themselves. As she had never been trained in the job, why should she help others. In that regard, La Spina said she had never met the new Contracts Administrator, Johanna McIntyre, and didn’t know what she did. Miles indicated that she did not think La Spina’s approach was helpful. It was agreed that Miles would formally introduce McIntyre to La Spina and the meeting ended. 13

[19] On 2 August 2017, La Spina made a complaint about her lack of confidence in Boey to Sass. 14 There is no evidence that Oreana took any steps to respond to the complaint.

[20] On 3 August 2017, La Spina was formally introduced to McIntyre by Miles as agreed two days prior. According to the written accounts of both McIntyre and Miles, La Spina said to McIntyre, in words to the effect:

“Kirstin wanted us to meet again because she told me you said I intimidate you.”  15

[21] She went on to question McIntyre’s knowledge of building plans and where to get them from. 16 According to the record of this exchange, McIntyre was visibly upset.

[22] On 15 August 2017, Ebony Spiteri, a client of Oreana, complained about La Spina’s manner on 11 August 2017, which she said was “rude and unhelpful”. 17 The complaint was not addressed with La Spina at the time. La Spina denies being rude and says it was the client who was rude to her. The evidence is inconsistent and while I accept that there was an exchange between Spiteri and La Spina on 11 August 2017, I am not satisfied on the material before me that La Spina’s conduct was unreasonable in the circumstances.

[23] On 1 November 2017, La Spina was issued with a revised contract of employment. Among other things, it set out her duties including the requirement to comply with Oreana’s lawful and reasonable directions. 18

[24] In early May 2018, there was an incident in the office. It is not in dispute that La Spina said openly, about other staff members, “Here they are again, late as usual” and “you all are making too much noise and chatting too much. Don’t you have work to do?” 19 The incident was discussed with La Spina, Boey and Oreana’s HR Business Partner, Eanna O’Duill on 7 May 2018. A ‘communication record’ was prepared, advising La Spina that she was to refrain from making negative comments to or regarding other staff, at risk of further disciplinary action.20

[25] On 29 May 2018, La Spina and Boey had another discussion about La Spina’s ‘overly negative communication style’ and failure to follow an instruction not to involve Sass in simple work related issues. On 31 May 2018, a verbal warning was issued to La Spina in relation to the concern. 21

[26] On 8 June 2018, there was a heated argument at work involving La Spina and other members of staff, including Soeteman, Jane Wang, Garry Ng and Carol Zhang. 22

[27] On 18 June 2018, there was an incident involving La Spina and Soeteman. It is alleged that La Spina responded to a work request from Soeteman in an excessively aggressive and physically intimidatory way, by approaching her quickly and aggressively, pushing up her sleeves and standing over her demanding to meet immediately. According to Boey, Soeteman was cowering and putting her hand up, and after the encounter was visibly upset. 23

[28] La Spina downplays, but does not dispute, the incident. She says she walked over to Soeteman’s desk and ‘slightly’ pulled up her sleeves because she was warm, saying “Okay let’s just do it now” or words to that effect. She says if Soeteman was intimidated, it was a matter of perception, as no physical force was used. La Spina also says she was frustrated when Soeteman asked her for information while she was in the middle of a quote and that she was provoked by Soeteman, who kept interrupting her and had earlier accused her of ‘scaring away’ another new staff member. Soeteman’s conduct is also not in dispute, and nor is the fact that Oreana subsequently asked Soeteman to apologise to La Spina for her comment, which she did. 24

[29] On 19 June 2018, La Spina was required to attend a disciplinary meeting. 25 On 21 June 2018, a communication record of incidents including those on 8 and 18 June 2018 was prepared by O’Duill. It confirmed Oreana’s expectation that La Spina engage with all stakeholders in a civil and professional manner and stated that her conduct was not meeting those expectations. La Spina was formally issued with a final written warning in relation to the alleged intimidating behaviour toward Soeteman, as well as continuing rude and/or aggressive interaction with other staff and stakeholders. The warning advised that any further incidents or failure to improve may result in disciplinary action, up to and including termination of employment.

[30] In subsequent correspondence between La Spina and O’Duill, La Spina provided a written explanation of events. O’Duill agreed that there were relevant mitigating circumstances. However, he reminded La Spina that she was expected to modify her own behaviour to avoid ongoing escalations at work. 26

[31] Separately on 21 June 2018, a performance improvement plan was prepared for La Spina to deal with what Oreana considered her unsatisfactory workplace behaviours. It set out the following expectations:

1. Responding to reasonable requests for work in a positive way, and following set business processes;

2. Progressing and updating work in a succinct and appropriate way;

3. Refraining from aggressive, rude and argumentative behaviour towards all stakeholders, or negative or sarcastic comments audible enough for all to hear;

4. Working in a collaborative and cohesive way with other members of the team; and

5. Refraining from using rude or inflammatory language when sending emails.

[32] On 12 July 2018, a meeting to discuss progress against the performance improvement plan was held with La Spina, and outcomes recorded. Improvement in her behaviour was noted, but La Spina was also advised that many of the concerns remained. The meeting became heated to the point where other staff members interrupted to advise that it was disturbing clients. 27

[33] On 4 September 2018, La Spina’s performance improvement plan was again reviewed and the conversation again became heated. La Spina was advised that despite earlier improvements, there were ongoing concerns about her approach to dealing with others at work. Her employment was terminated due to failure to meet performance standards in relation to communication with stakeholders and her overly aggressive, argumentative and inappropriate communication style. She was paid five weeks’ pay in lieu of notice of termination. 28

Was the dismissal harsh, unjust or unreasonable?

Was there a valid reason for the dismissal related to capacity or conduct?

[34] The evidence establishes that La Spina’s approach to her work was not without difficulty. In my view, she was a capable employee frustrated by what she saw as the shortcomings of her colleagues. Unfortunately, the manner in which she dealt with her frustration was frequently inappropriate and inconsistent with her obligations as an employee.

[35] In some respects, La Spina cannot be held solely responsible for what occurred. She sought to address particular difficulties in her relationship with Soeteman, and was unable to elicit any substantive response from Oreana about her concerns, except where Soeteman was required to apologise for an inappropriate comment to her. The result was an ongoing deterioration of the relationship between them, which manifested in occasional open workplace conflict of varying degrees. While email correspondence between La Spina and Soeteman does not reveal significant tension between them, I am satisfied that there were issues. Oreana had the opportunity to intervene and deal with the complaints at the time they were made. Had it done so, it is possible that things would have turned out differently, at least in terms of how they interacted at work.

[36] I am not satisfied that the same can be said about the relationship between La Spina and Boey. It is tolerably clear that La Spina had very little respect for Boey. She considered Boey aggressive and always busy; someone who did not comprehend the task at hand and was never obliging. 29 She sought to prove Boey’s lack of knowledge to others by a range of means, including bypassing Boey and communicating directly with Sass and complaining to human resources. She sometimes hung up on Boey (and says Boey did the same to her). There were frequent heated discussions between them. On one occasion, La Spina was asked to change seating arrangements to sit with the rest of her team, moving away from her window seat. According to Boey, she resisted and said “If you don’t move, why should I?” The account is corroborated by La Spina’s own evidence. La Spina refused to follow Boey’s reasonable and lawful instructions, including to not approach new staff and to refrain from including Sass in simple workplace requests. It is revealing that she only agreed to cease this latter behaviour when a written instruction from Sass to that effect was shown to her. In other words, she was only prepared to accept the instruction once she knew it came from someone other than Boey, who was her manager.

[37] The complaint made by La Spina about Boey on 2 August 2017 was made in the context where she knew her own conduct in relation to the ‘working drawings’ was likely to affect her performance review, because Boey had told her so. Her refusal to assist with Boey’s request for information occurred in circumstances where she was the only employee with relevant experience of working drawings who was in a position to assist. It was unacceptable, uncooperative and unreasonable.

[38] Employment contracts, in common with contracts generally, attract the duty to cooperate. 30 In my view, it was reasonable for Boey to express her concern when La Spina refused to cooperate in relation to the working drawings. Boey was La Spina’s manager and the person tasked with issuing instructions in relation to her work. So long as they were reasonable and lawful instructions, it was not open to La Spina to refuse or defy them, even if she did not agree. There is no basis on which to find that the request was anything but reasonable and lawful.

[39] The evidence establishes that over a period of more than one year, La Spina’s communication with others in the workplace did not meet the expectations of Oreana and that this was communicated to her on multiple occasions. There can be no doubt that La Spina was on notice that she was expected to interact with others positively and without rudeness or aggression. While there was a period after the warning on 21 June 2018 when her behaviour improved, I accept that it was only temporary.

[40] I find that there was a valid reason for the dismissal related to La Spina’s repeated unreasonable and uncooperative workplace behaviour over the period from July 2017 to September 2018. This weighs against a finding of unfair dismissal.

Was that reason notified to the employee?

[41] I am satisfied that La Spina was notified of the valid reason for her dismissal relating to her conduct on numerous occasions over the period from July 2017 to September 2018. The reasons were set out in each of the formal records of discussion, warnings and the performance improvement plan. I am satisfied that they were also discussed in meetings with La Spina over the relevant period. This weighs against a finding of unfair dismissal.

Was there an opportunity to respond to any capacity or conduct related reason?

[42] La Spina was given an opportunity to respond to the concerns about her conduct in the meetings on 7 May 2018, 19 June 2018, 21 June 2018 and 4 September 2018. This weighs against a finding of unfair dismissal.

Was there any unreasonable refusal to allow a support person to be present to assist at any discussions relating to dismissal?

[43] There is no evidence of any refusal to allow La Spina to have a support person present to assist in discussions relating to the dismissal. It is not a relevant consideration.

Was La Spina warned about relevant unsatisfactory performance?

[44] As the history of this matter makes clear, La Spina was warned on numerous occasions about her communication style, the effect it was likely to have on others and what was expected of her in terms of improvement. This weighs against a finding of unfair dismissal.

Degree to which the size of the employer’s business would be likely to impact on procedures followed in effecting the dismissal

[45] There is no evidence that the size of Oreana’s enterprise affected the procedures it followed in effecting the dismissal. I do not consider it likely that they did. Oreana is a relatively small business, but one that has formal structures and processes in place including the employment of a HR Business Partner and processes to deal with concerns about performance, including performance improvement plans.

Degree to which absence of dedicated human resources management specialists or expertise in the business would be likely to impact on procedures followed in effecting the dismissal

[46] There was no relevant absence of dedicated human resources management specialists or experts in the business. Oreana employed O’Duill as its HR Business Partner in the months prior to, and at the time of, the dismissal. This is not a relevant consideration.

Other relevant matters

[47] I accept La Spina’s evidence that rudeness was sometimes a feature of the office environment (in the sense that staff did not always treat each other with the necessary courtesy and respect). As noted above, it was not only La Spina who contributed to this environment although I accept O’Duill’s evidence that her particular contribution was significant and occurred in circumstances where La Spina was clearly on notice that her behaviour was not acceptable to Oreana. This weighs marginally in favour of La Spina’s claim.

[48] La Spina says Soeteman received preferential treatment over her, referring to Soeteman’s ‘pushy and demanding’ conduct toward La Spina. The fact that her complaints about Soeteman went unresolved weighs in favour of a finding of unfairness, because the tension between them in my view contributed to her combative communication at work. However, there is also evidence that Soeteman was warned about her own inappropriate workplace conduct toward La Spina and that she was not dismissed because she responded to the warning by improving her behaviour. The evidence was not challenged and I accept it. This weighs against a finding of unfairness.

[49] La Spina accuses Boey of favouritism. She says “if you are not in the circle of friendship with the Administration Manager, you are picked on and your every move and response, noted.” 31 I am not satisfied on the evidence that La Spina was targeted by Boey. I am satisfied that Boey’s attempts to manage La Spina’s workplace behaviour were reasonable and appropriate in the circumstances.

[50] Separately to its concerns about La Spina’s workplace behaviour, Oreana also says it had performance concerns about her capacity to perform the role, including in relation to answering the phone, entering data into workplace systems and weekly reports.

[51] I find that La Spina responded to phone overflows but that she could have done more to assist in that regard. The evidence does not establish that La Spina’s performance of data entry tasks gave rise to a relevant performance concern.

[52] I accept that there were issues in the transition to a new online system, and that workplace training was largely on the job. In my view, the issues were related to the tension between La Spina and Soeteman who was asked to assist La Spina in learning the new system rather than to La Spina’s capacity to perform the work.

[53] In relation to the weekly reports, I accept La Spina’s evidence that she was asked to do, in a short period, work that she considered was the responsibility of Soeteman. La Spina raised her concerns with Sass, accusing Soeteman of giving her an ultimatum. Additional time was given for completion of the report. I am not satisfied that the issue gave rise to a concern about performance. Rather, it was a continuation of the tension La Spina and Soeteman at work. This weighs in favour of a finding of unfairness, relating to the unresolved complaints made by La Spina in relation to Soeteman in 2016.

[54] Finally, La Spina says there were no processes or procedures implemented for her to follow and she was not given training or development to assist her in her role. This is not established on the evidence. I am satisfied that La Spina was offered on the job support as required, including by Boey and O’Duill. This included regular informal discussions as well as the more formal performance improvement process. While it is unfortunate that the person tasked with supporting her to learn the new online system was Soeteman, given the relationship between them, I accept that Soeteman was expressly instructed in advance that she was to support La Spina notwithstanding past issues, or words to that effect. On balance, this matter does not weigh in favour of a finding of unfairness.

Conclusion

[55] Having considered each of the matters set out above, on balance I am not satisfied that the dismissal of La Spina was either harsh, unjust or unreasonable. La Spina was not unfairly dismissed.

[56] The application is dismissed.

COMMISSIONER

Appearances:

J La Spina, Applicant

E O’Duill for the Respondent

Hearing details:

2019.

Melbourne:

January 14.

Final written submissions:

Applicant, 4 February 2019, 10 February 2019 (in reply)

Respondent, 8 February 2019, 14 February 2019 (in reply)

Printed by authority of the Commonwealth Government Printer

<PR705987>

 1   Form F3, Exhibit 17

 2   Fair Work Act 2009 (Cth), s.385

 3   Form F3

 4   Fair Work Act 2009 (Cth), s.388

 5   Fair Work Act 2009 (Cth), s.23

 6   Exhibit 2, Email from La Spina to Boey, 22 June 2016

 7   Exhibit 14

 8   Exhibit 9

 9   Exhibit 23, 25

 10   Form F3, Exhibit 23

 11   Audio file of hearing, 14 January 2019

 12   Exhibit 26

 13   Form F3

 14   Exhibit 15

 15   Exhibit 27

 16   Exhibit 27

 17   Exhibit 24

 18   Exhibit 17

 19   Exhibit 20

 20   Exhibit 20

 21   Exhibit 10

 22   Exhibit 21

 23   Audio file of hearing, 14 January 2019

 24   Exhibits 2, 11 and 12

 25   Exhibit 11

 26   Exhibit 12

 27   Exhibit 19

 28   Exhibit 4

 29   Exhibit 2

 30   Commonwealth v Barker [2014] HCA 32 at [30]

 31   Exhibit 2