Julia Galeeva v W24 Pty Ltd T/A Woodards Melbourne

[2018] FWC 4396

[2018] FWC 4396

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections (consent arbitration)

Julia Galeeva
v
W24 Pty Ltd T/A Woodards Melbourne; Juanita Kelly
(C2018/516)

COMMISSIONER GREGORY MELBOURNE, 26 JULY 2018

Application to deal with a general protections dismissal dispute – consent arbitration.

Introduction

[1] Ms Julia Galeeva lodged a general protections application on 29 November 2017 with the Fair Work Commission (“the Commission”) under s.365 of the Fair Work Act 2009 (Cth) (“the Act”) after being dismissed from her employment as a Sales Administrator/Receptionist by W24 Pty Ltd T/A Woodards Melbourne (“Woodards”).

[2] Her application detailed alleged contraventions of the Act by her former employer Woodards (first Respondent), and by a Director of the business, Ms Juanita Kelly (second Respondent).

[3] The application was initially dealt with in conference, however, a certificate was subsequently issued by McKinnon C under s.368 of the Act indicating she was satisfied that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful.

[4] Ms Galeeva then filed a notification of agreement for a consent arbitration of the general protections dispute under s.369 of the Act and it was then confirmed that the parties had reached an agreement for the Commission to deal with the dispute by arbitration. This decision deals with that application. The matter was heard on 9 April 2018. Ms Galeeva appeared on her own behalf. Ms Juanita Kelly appeared on behalf of the first Respondent, and on her own behalf as the second Respondent.

The Issues to be Determined

[5] The Act prohibits an employer from taking adverse action against an employee because, relevantly, that employee exercises a workplace right.

[6] Section 340 states, in part:

“(1) A person must not take adverse action against another person:

(a) because the other person:

…

(ii) has ... exercised a workplace right; ...” 1

[7] Section 341 sets out the meaning of a workplace right, relevantly:

“(1) A person has a workplace right if the person:

…

(c) is able to make a complaint or inquiry:

…

(ii) if the person is an employee--in relation to his or her employment.” 2

[8] The table in s.342 sets out the circumstances in which a person takes ‘adverse action’ against another person. Relevantly, adverse action is taken by an employer against an employee if, amongst other things, the employer dismisses the employee. 3

[9] Therefore, the questions to be determined are as follows:

1. Did Ms Galeeva exercise a workplace right pursuant to s.341?

2. Did the Respondents take adverse action against Ms Galeeva pursuant to s.342?

3. Did the Respondents take adverse action because of a prohibited reason or reasons that included that reason pursuant to s.340?

The Applicant’s Evidence and Submissions

Ms Julia Galeeva

[10] Ms Galeeva provided a statutory declaration dated 20 February 2018 setting out the evidence she seeks to rely upon. She commenced employment with Woodards as a Sales Administrator/Receptionist on 17 September 2017 after previously having worked in the real estate industry in similar roles for the past 6 years.

[11] The systems Woodards used were familiar to her, given her previous experience, and from the time she commenced she was given “consistent positive feedback on my performance, on my ability to have picked up systems well and my capacity to absorb and manage very high volume of work.” 4 This consistent, positive feedback also came from Ms Kelly on an almost daily basis and occurred despite the fact she had only been given a very limited, three day handover from her predecessor. She also indicated in an additional reply statement that Ms Kelly was always busy, and was out of the office most of the time, meaning she did not spend much time assisting her to settle into her role.5

[12] She also indicated in cross-examination that she was not provided with any proper induction, but was simply told to observe what the junior staff were doing. 6 She also acknowledged that providing financial reports on the “Box and Dice” system, and providing end of the month and middle of the month reports, was something new to her.

[13] Ms Galeeva also states that she was never given any adverse feedback, or told that her work performance was a problem at any stage. She also indicated in response to a question from the Commission that she was not aware that anyone in the business was unhappy about her work performance. 7 She was also not aware of any meetings that had taken place within the business about her work performance until the meeting on 10 November 2017. She indicated, in summary, that “Ms Kelly continued to give me consistent positive feedback, almost daily, and on average two to three times a week, sometimes directly and sometimes around witnesses. And this positive feedback continued until the day I wrote my email to Ms Kelly on 7 Nov.”8

[14] On 7 November 2017, Ms Galeeva sent an email to Ms Kelly raising concerns about what she considered to be her excessive workload, which was requiring her to work between 10 and 12 hours a day. She also indicated in this email that she was now pregnant. She was then called into a meeting with Ms Kelly on 10 November. Ms Kelly initially asked her about her pregnancy and when she was expecting. She continued by using words to the effect of, “…we are looking for someone longer term” 9 and “so this role is not for you”,10 and “an exit plan will need to be agreed to ASAP.”11 She also said that Ms Kelly told her she was concerned that she did not know how to use the systems at work.

[15] Ms Galeeva said this took her by surprise, given Ms Kelly had never mentioned any concerns about her work performance in the past. The meeting concluded with Ms Kelly indicating that she could finish “today, tomorrow or next week,” 12 however, it was agreed these arrangements would be confirmed on the following day.

[16] Ms Galeeva said she was shocked by Ms Kelly’s comments, “and I felt that she basically wanted me to leave on the day, primarily triggered by the news of my pregnancy.” 13 She then sent an email to Ms Kelly on Saturday, 11 November, setting out her concerns about the meeting and how disappointed and shocked she was at what she had been told. On Sunday, 12 November she received an email from Ms Kelly stating that her employment was terminated as of Friday, 10 November, but no reasons for her termination were provided.

[17] Ms Galeeva indicated in conclusion, “I strongly believe, and based on my direct interactions with Ms Kelly, my employment was terminated purely on the basis of my pregnancy and my expressions of concern regarding the excessive workload.” 14

Ms René Spungin

[18] Ms Spungin was employed as a Sales Consultant at Woodards from 25 September 2017 until 19 October 2017 when she resigned for personal reasons. During this time she witnessed on an almost daily/weekly basis Ms Kelly complimenting Ms Galeeva on her ability to master the tasks required and to cope with the heavy volume of work. 15 Ms Galeeva was also required to work long hours in order to meet deadlines, and regularly worked additional hours and skipped lunches to enable this to occur.16 She also had dual responsibilities in her role as a receptionist, as well as providing sales administrative support.

Ms Sarah Lepou

[19] Ms Lepou was employed by Woodards as an Advertising Coordinator/Personal Assistant from 14 March 2017 until 30 September 2017. She worked with Ms Galeeva in the first two days of her employment after she was employed to take over from Ms Lepou. Ms Lepou said that in the time she was employed there was a significant volume of work, and consistently high expectations from Ms Kelly, and she would often work long hours to meet the deadlines involved. 17 She also said that from her observations of Ms Galeeva she appeared to be picking up the key tasks well and her overall knowledge of the systems was a good, given she had previously worked with some of those systems.18

Closing Submissions

[20] Ms Galeeva indicated in her closing submissions that during her time at Woodards she and Mr Piccolo did not work together directly, and he did not have the opportunity to witness or to review her work first hand. She also submits that the meeting with Ms Kelly on 10 November “was mainly around my pregnancy,” 19 given Ms Kelly’s comment that “we are looking for someone for a long term.”20 She continues to take issue with the matters raised about her work performance, and reiterates that Ms Kelly was not available at most times to provide her with any additional support or advice. She also submits that she was given too much work to do, with limited training, and expected to work long hours which involved skipping the normal breaks. She also submits that the email regarding the decision to terminate her employment clearly states she was to be replaced, not terminated immediately, and it was only after she sent the email on 7 November that she was then terminated by Ms Kelly on 10 November.

[21] She also submitted in response to a question from the Commission in regard to the email from Mr Piccolo on 31 October that “I doubt the authenticity of this email, because there was no issue raised about my performance at any stage. I was not aware of anything.” 21 She continued to submit that she believed it was too much of a coincidence that the email was sent on 31 October, seven days prior to her informing the business on 7 November about her pregnancy for the first time.

The Respondent’s Evidence and Submissions

Ms Juanita Kelly

[22] Ms Juanita Kelly is a Director of Woodards and is based at its Elsternwick office. In September last year she engaged a recruitment agency to source an experienced Real Estate Sales Administrator. She required someone who had experience in the various software programs that were required to be utilised in sales administration. She subsequently interviewed Ms Galeeva, who indicated that she had the requisite experience and skills she was seeking, and she was appointed to the position on 25 September last year.

[23] However, it became evident that she did not have experience with advertising programs and she could not see any evidence of administrative proficiency. This required her to spend significant periods of time with Ms Galeeva explaining basic office procedures. She also received complaints from other staff that were endeavouring to support her. It appeared that she was not to be able to come to grips with the required processes even after they were explained to her on numerous occasions.

[24] Ms Kelly said she did what she could to encourage and support Ms Galeeva, however, she had a significant workload herself and the time she was required to spend with Ms Galeeva placed additional stresses on her. She continued to indicate that Ms Galeeva made mistakes in advertising orders and extra costs were incurred as a consequence.

[25] She continued to indicate, “The decision to terminate Ms Galeeva’s employment was made by me and the Woodards Board Members, confirmation of which is contained in the email sent to me 31^st October 2017 (Attachment C) to which Ms Galeeva had access.” 22 At this point she had been employed for seven weeks of a probationary period involving a total of 6 months. She was given the option of either finishing immediately or being paid until 17 November 2017.

[26] Ms Kelly also indicated in cross-examination that at the time of Ms Galeeva’s termination there was no readily available replacement for her, however, there was someone in that position now. 23 She also indicated in response to a question from the Commission that the decision to terminate Ms Galeeva’s employment would have occurred anyway, regardless of the email received from her on 7 November.24 She also said that if she was doing a good job she would have been very keen to keep her on because the business was coming into a very busy period. She again indicated in response to a question from the Commission that she was endeavouring to encourage Ms Galeeva during the time she was employed, and was not aware that she had ever been critical of her performance directly.25

Mr Craig Franzi

[27] Mr Franzi is employed as a Sales Consultant at Woodards’ Elsternwick office and has been in that role since June 2014. He stated that after Ms Galeeva was employed there were problems in getting work done, and his workload increased because he was required to check matters to make sure they had been completed correctly. 26 He also saw Ms Kelly continually encouraging Ms Galeeva, and she often had to repeat the instructions given to her.

[28] However, Mr Franzi also indicated in response to a question from the Commission that most of the assistance he requested from Ms Galeeva was done on behalf of Ms Kelly in regard to appraisals and advertising deadlines that needed to be met. 27 He also indicated that he did not raise his concerns about Ms Galeeva’s work performance because he understood Ms Kelly was already aware of what was occurring.28

Mr John Piccolo

[29] Mr Piccolo is a Director of the business and the Chair of the Board of Directors. He said he only met Ms Galeeva on one occasion and had no direct involvement with her. However, she was required to produce various sales reports for the Board meetings and these were not produced as they should have been. He also understood that Ms Kelly was working additional hours in order to keep the Elsternwick office running in a professional manner due to Ms Galeeva’s inability to perform her role. 29 He also said that it became clear that the business could not continue to support a person who did not have the skills or capacity to perform the role. He subsequently confirmed the decision taken by the Board in October in an email to Ms Kelly on 31 October 2017, after receiving an email detailing a number of complaints about Ms Galeeva from his General Manager, Ms Cathy Romagnano.

[30] The email from Ms Romagnano, dated 31 October 2017, which was sent to Ms Kelly and another Director, Mr Fabian Secatore, with a copy provided to Mr Piccolo, stated:

“Good afternoon

I just wanted to bring to your attention our concern with Julia’s ability to carry out her duties as sales/marketing co-ordinator.

Both Mia and Penny have spent an inordinate amount of time with her and the concern is that she really isn’t grasping the role. For Julia to ask Penny last week how to remove a blank page from a word document, tells me that she knows very little about admin and given that she is paid a salary of $60k, surely we would expect her to have at least some knowledge of the role, unless she is highly skilled in other areas that we greatly value.

It appears that she was shown very little during the handover from Sarah and whilst everyone is more than happy to help out wherever possible, you need to understand that at this time of the year, everyone is quite busy and they may not be able to give her the immediate attention that she needs.” 30

[31] Mr Piccolo then replied in an email sent later that day which stated:

“Hi all

As indicated at our recent Board meeting, my view is we should find a suitable replacement asap i.e. one that has the requisite skill set to meet the job PD. Happy to discuss in more detail if required.

Ciao” 31

Ms Cathy Romagnano

[32] Ms Romagnano is employed as a General Manager of the Woodards Group and is based at its Camberwell office. She did not meet Ms Galeeva during the time she was employed at Woodards and she only came to her attention when she overheard some critical comments about her. Ms Romagnano was subsequently advised by other employees in the Camberwell office that Ms Galeeva was constantly ringing to ask how to do something, and often asked the same questions again. She also stated that her long experience in the real estate industry placed her in a good position to be able to judge the appropriate workload that can be taken on by a sales and marketing coordinator. 32

[33] She indicated that it had become evident that Ms Galeeva did not have the capacity to handle the role and her inability to understand the daily tasks “… made her position untenable.” 33

[34] She subsequently forwarded the email dated 31 October 2017, which has been set out in full above.

Ms Pepina Adam

[35] Ms Adam said that when Ms Galeeva commenced employment at Woodards she came to the office in Camberwell to be trained in the systems used by the business. Ms Adam was involved in providing training to her, and Ms Galeeva told her that she understood all that was involved, although she also acknowledged that she had only a limited handover from the previous employee.

[36] However, Ms Adam said that after Ms Galeeva commenced work in the Elsternwick office she was constantly ringing to ask for help and often asked questions about matters that had been raised previously. She also complained at times that she was very busy and she was having difficulty keeping up. However, Ms Adam believed that various tasks that should have been completed within a limited period of time appeared to be taking Ms Galeeva much longer to complete. 34

[37] The Commission also indicated to Ms Adam that Ms Galeeva had indicated in her evidence that she only made contact with the Camberwell office on a limited number of occasions, whereas Ms Adam’s evidence indicated this was occurring more often. Ms Adam indicated in response that Ms Galeeva would ring nearly every day, and sometimes more than once a day. 35 Ms Adams was also able to view what Ms Galeeva was doing on her computer. She also spoke to Ms Kelly about her concerns because she was tired of Ms Galeeva ringing all the time. She said, “If she had the experience she shouldn’t have been calling that many times for help.”36

Closing Submissions

[38] Woodards submits, in conclusion, that Ms Galeeva was provided with appropriate training for someone who was supposedly already proficient in the various systems being used by the business. It also indicated that the email provided to Ms Kelly by Mr Piccolo on 31 October was intended as a reminder that this was something that needed to be done.

Consideration

[39] Ms Galeeva is clearly upset about the circumstances in which her employment at Woodards came to an end. In her view she was terminated as a consequence of informing the business that she was pregnant, in circumstances where she had not previously been told about any significant issues to do with her work performance. Woodards has a different view. It submits that its decision had nothing to do with Ms Galeeva’s pregnancy, and prior to being informed about her being pregnant it had already made a decision to replace her, as soon as possible, because of issues to do with her work performance.

[40] In coming to a decision in this matter I am satisfied that Ms Galeeva is, firstly, required to prove she has exercised a workplace right. Section 341 of the Act defines a workplace right as follows:

“341 Meaning of workplace right

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a roller responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceeding under a workplace law or workplace instrument; or

(c) is able to make a complaint or enquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee – in relation to his or her employment.” 37

[41] The evidence indicates that Ms Galeeva made reference to her pregnancy in the email she sent to Ms Kelly on 7 November 2017. She also raised concerns about what she claimed was her excessive workload. Woodards does not take issue with the fact Ms Galeeva exercised a workplace right in this context, and I am prepared to accept that this is the case.

[42] The Commission is also required to be satisfied that Woodards took adverse action against Ms Galeeva. It is not disputed that the termination of her employment is adverse action. I accordingly find that Woodards took adverse action against Ms Galeeva.

[43] However, the Commission is also required to be satisfied that the adverse action was taken because of a prohibited reason or a reason that included that reason. In this case it is understood that Ms Galeeva relies on s.351 of the Act which provides as follows:

“(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.” 38

[44] Ms Galeeva obviously relies on the reference to “pregnancy” in this context.

[45] In coming to a decision it is noted that the decision of the Full Bench in Neil Keep v Performance Automobiles Pty Ltd[2014] FWCFB 8941 found that whether adverse action was taken because of a prohibited reason is a question of fact, and the Commission’s task is to determine on the balance of probabilities why the employer took adverse action against the employee, and whether it was for a prohibited reason. It also noted that evidence in regard to the decision maker, which is accepted as reliable, is capable of discharging the burden of proof that otherwise lies on the employer. It continued to indicate:

“It is apparent from the above extract that evidence from the decision maker which is accepted as reliable ‘is capable’ of discharging the burden of proof cast on the employer by s.361. But this does not mean that evidence by a credible decision – maker that adverse action was not taken because of any prohibited reason will necessarily always discharge the statutory onus. It is open to the FWC to accept as honest and credible a decision maker’s explanation of the decision for taking adverse action, then to weigh all of the evidence and the overall facts and circumstances of the case, and not be satisfied that the employer has discharged the statutory onus.” 39

[46] In coming to a decision in this matter it is acknowledged at the outset that Ms Galeeva was entitled to believe that her pregnancy was the reason for her dismissal, given that only three days after informing the business she was pregnant she was told her employment was to be terminated. The evidence also indicates that this occurred without her having been made aware in any formal sense about any significant concerns to do with her work performance. While the evidence indicates that several employees had concerns, including Ms Kelly, Mr Franzi, and Ms Adams, it also indicates that they had not discussed or raised these concerns in any detail with Ms Galeeva. The fact that this had not occurred undoubtedly reinforced her view that the announcement of her pregnancy was the reason for her termination.

[47] However, it does not necessarily follow from this temporal connection between the content of the email dated 7 November and the subsequent discussions with Ms Kelly on 10 November that the content of the email was the cause of Ms Galeeva’s employment being terminated.

[48] As indicated, I have also had regard to the evidence of the Managing Director of Woodards, Mr John Piccolo. He stated he became aware some time prior to November last year that there were issues associated with Ms Galeeva’s ability to perform her role, although he did not have first-hand knowledge of this, given he was located at a different office. He then received the email dated 31 October 2017 from Ms Romagnano, which has been set out in full at an earlier point in this decision.

[49] He subsequently provided the email in response confirming what had been decided in a recent Board meeting, being that a suitable replacement should be found for Ms Galeeva as soon as possible. Woodards accordingly submits that the emails and Mr Piccolo’s evidence both confirm that a decision had been made to terminate Ms Galeeva’s employment prior to the business having any knowledge of the fact she was pregnant.

[50] Ms Galeeva indicated in her submissions that these emails might have been concocted, however, I am not aware of any evidence currently available to support this submission, and I can only act on the basis of what is now before the Commission.

[51] It is also acknowledged that Ms Kelly was then slow to act on this decision and did not inform Ms Galeeva that her employment had been terminated until after she received the email on 7 November from Ms Galeeva, which included the advice that she was now pregnant.

Conclusion

[52] As indicated, Ms Galeeva is clearly unhappy about what happened during the time she was employed by Woodards. It appears that there was only a limited handover period when she commenced with the business. She also had little direct support in the office in which she was located. The evidence also indicates that there were some concerns about her work performance, but these were never communicated to her directly or in any formal sense. This was acknowledged by her immediate Manager, Ms Kelly, who said she was endeavouring to provide encouragement to Ms Galeeva, and did not directly take issue with her work performance. It is unfortunate that Ms Kelly did not take the time to work through any performance issues she had with Ms Galeeva, so that areas for improvement could be identified and acted upon.

[53] However, I am satisfied, in conclusion, that a decision had already been made by Woodards to terminate Ms Galeeva’s employment before Ms Kelly received the email on 7 November, and that this decision was made without any knowledge or understanding at the time that Ms Galeeva was pregnant. I therefore find, on the balance of probabilities, that Woodards did not terminate Ms Galeeva’s employment for reasons that included a prohibited reason. Her application is accordingly dismissed.

COMMISSIONER

Appearances:

J Galeeva on her own behalf.

J Kelly on behalf of the Respondent and on her own behalf.

Hearing details:

2018.

Melbourne:

April 9.

Printed by authority of the Commonwealth Government Printer

<PR609310>

 1   Fair Work Act 2009 (Cth) s 340(1)(a)(ii).

 2   Fair Work Act 2009 (Cth) s.341(c)(ii).

 3   Fair Work Act 2009 (Cth) s.342.

 4   Statutory declaration of Applicant, dated 20 February 2018, [4].

 5   Reply witness statement of Applicant, dated 28 March 2018, [5].

 6   Transcript, 9 April 2018, PN 208.

 7   Ibid, PN 265.

 8   Statutory declaration of Applicant, signed 20 February 2018, [6].

 9   Ibid, [10].

 10   Ibid.

 11   Ibid.

 12   Ibid, [11].

 13   Ibid, [12].

 14   Ibid, [15].

 15   Witness statement of Rene Spungin, dated 21 February 2018, [5a].

 16   Ibid, [6].

 17   Witness statement of Sarah Lepou, dated 20 February 2018, [5]

 18   Ibid, [6].

 19   Transcript, 9 April 2018, PN 473.

 20   Ibid.

 21   Transcript, 9 April 2018, PN 482.

 22   Witness statement of Juanita Kelly, filed 16 March 2018, [13].

 23   Transcript, 9 April 2018, PN 366.

 24   Ibid, PN 388.

 25   Ibid, PN 377.

 26   Witness statement of Craig Franzi, filed 16 March 2018, [11]

 27   Transcript, 9 April 2018, PN 126.

 28   Ibid, PN 127.

 29   Witness statement of John Piccolo, dated 15 March 2018, [5].

 30   Witness statement of Juanita Kelly, filed 16 March 2018, Attachment C.

 31   Ibid.

 32   Witness statement of Cathy Romagnano, dated 15 March 2018, [3].

 33   Ibid, [6].

 34   Witness statement of Pepina Adam, dated 14 February 2018, [5].

 35   Transcript, 9 April 2018, PN 136.

 36   Ibid, PN 137.

 37   Fair Work Act 2009 (Cth) s 341.

 38   Fair Work Act 2009 (Cth) s 351.

 39   Neil Keep v Performance Automobiles Pty Ltd [2014] FWCFB 8941, [51].