Katherine Box v Sam Riley Swim Schools Training & Development P/L

[2012] FWA 7298

[2012] FWA 7298

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Katherine Box
v
Sam Riley Swim Schools Training & Development P/L
(U2012/7177)

COMMISSIONER BISSETT MELBOURNE, 4 SEPTEMBER 2012

Application for unfair dismissal remedy - employee dismissed at initiative of the employer.

[1] This is an application by Ms Katherine Box (the Applicant) alleging unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms Box says her employment was terminated by Sam Riley Swim Schools Training and Development P/L (the Respondent) on 31 March 2012.

[2] Ms Box was employed for a period of five and half years as a casual employee, generally for 18.5 hours per week although in 2010 her hours increased to about 25 hours per week.

[3] The Respondent says that the Applicant’s employment was not terminated but her hours were reduced because of reduced demand and the seasonal nature of the work.

Evidence

[4] The evidence of the Applicant is that she returned from three weeks’ leave in late March 2012. On 31 March 2012 she was asked to stay back when she completed her shift for a quick meeting with Ms Julie Bransgrove the Swim School Manager and Mr Brendan Dowling the Program Manager.

[5] The Applicant’s evidence is that at that meeting she was told by Ms Bransgrove that she had issues with authority and that her attitude did not accord with the Respondent’s code of conduct. She was then told that she was being given one hour’s notice and that her employment was being terminated. The Applicant was told to leave her swim shirt on the way out.

[6] About two hours later the Applicant received a text from Mr Dowling which stated:

Katie, I’ve just spoken to Trish on the phone and you are required to drop back any other sam riley gear including your red shirt and keys before your final pay is released. Cheers 1

[7] The Applicant says that on 2 April 2012 she approached the swim school with a letter addressed to Ms Bransgrove in which she sought a copy of her contract, a letter of termination including the reasons for termination, documents relating to her performance and a copy of the code of conduct. She was advised that the documents would be ready for her the following Tuesday.

[8] On Tuesday 10 April 2012 the Applicant returned to the swim school accompanied by her father to collect the documentation. Ms Bransgrove said she didn’t have the documentation and the Applicant should follow it up with Ms Sue Noonan (the ‘HR person’). The Applicant was given Ms Noonan’s phone and email details.

[9] On returning to her father’s house the Applicant rang Ms Noonan. She had the phone on loud speaker and her father listened to the conversation. The Applicant says that Ms Noonan advised her that the Respondent did not believe it had to provide the information sought by the Applicant. The Applicant said she just wanted to make sure that the reasons on her dismissal letter were the same as those given to her in the meeting of 31 March 2012. Ms Noonan said that the reason for her dismissal was her unreliability and taking too much time off. At Ms Noonan’s request the Applicant put in writing what she understood to have occurred on 31 March 2012. This included a statement that she ‘wanted to make sure that what Julie and Brendan discussed in [her] meeting was actually written down in [her] termination letter.’ 2

[10] The Applicant gave evidence that she did not recall a June 2011 performance review, 3 any meeting associated with it, or of receiving the report to sign. Whilst she remembers being counselled on failing to attend work or notify her absence in August 2011 she does not recall ever seeing a written report of that counselling.4

[11] The Applicant’s father, Mr James Box, gave evidence that supported the Applicant’s account of the discussion with Ms Noonan. Mr Box also gave evidence that on 10 April 2012 when he attended the swim school with his daughter at least one employee approached her and said that she was shocked to hear that the Applicant had been dismissed.

[12] Mr Box also wrote to Ms Samantha Riley about the actions taken by the swim school in dismissing his daughter with no notice and with a lack of due process.

[13] Evidence for the Respondent was given by Mr Brendan Dowling who said that the Respondent did have issues with the Applicant’s performance and attitude. He also said that in the lead up to winter - when business is quieter - they consider the performance of staff and their willingness to work the hours required. In this respect the Applicant’s performance had not been good so it was decided to reduce her hours over the winter months (to nil hours). He said it is not unusual for teachers to lose hours over winter and pick these up again in summer.

[14] Mr Dowling said that the term ‘dismissal’ was not used in the meeting with the Applicant on 31 March 2012.

[15] Mr Simon Tucker gave evidence for the Respondent that he had completed a performance review of the Applicant in June 2011 5 and had counselled her in August 2011 when she failed to attend work for her shift or provide advice of her inability to attend work.6

[16] Mr David Noonan gave evidence for the Respondent that it was obvious to him that the Applicant needed a break from the Respondent for herself and the business. He said it appeared that she did not want to be at work and her attitude was having an adverse effect on other employees.

[17] Mr Noonan’s evidence is that it was never the intention of the company to terminate the Applicant’s employment. There was a decline in business due to the seasonal nature of the work and it was hoped the Applicant would return with renewed enthusiasm when business improved.

Submissions

[18] Both parties relied on their evidence and written material.

Was the Applicant dismissed?

[19] No submissions were made to the contrary and I find that the application is protected from unfair dismissal in accordance with s.382 of the Act.

[20] The question to be determined is if the applicant was unfairly dismissed. On this the Act states

385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

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

[21] There is no submission that the Respondent is a small business and no submission was made that the dismissal was a case of genuine redundancy.

[22] It is necessary to determine if the Applicant was dismissed from her employment. The Act provides the following definition of dismissal:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[23] It is necessary to determine if any actions of the Respondent employer resulted in the termination of the Applicant’s employment.

[24] In Mohazab v Dick Smith Electronics Pty Ltd (No 2) 7 the Full Court of the Industrial Relations Court found that

it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.

[25] In this matter, had the Respondent not taken the actions it did the Applicant would not have thought that her employment was terminated nor made the current application before Fair Work Australia (FWA).

[26] If the Applicant was wrong in her belief the Respondent had many opportunities to disabuse her of this view yet it did nothing.

[27] I accept the evidence of the Applicant that she believed that she was dismissed from her employment at the meeting with the Respondent on 31 March 2012. In all of her communications with the Respondent after this date she consistently said that she wanted her letter of termination and the reasons for the termination. The Applicant raised the termination of her employment in her letter hand delivered on 2 April 2012, in her conversation with Ms Noonan on 10 April 2012 and again in her email to Ms Noonan on 10 April 2012.

[28] I find that, by her actions, the Applicant provided ample opportunity for the Respondent to tell her she was mistaken and that she had not, in fact, been dismissed but that her hours had been reduced due to the lack of available work. Whilst the Respondent says it had no intention of terminating the Applicant’s employment I find it took no steps to indicate to her that her employment had, in fact, not been terminated.

[29] On the basis of the evidence I find that the Applicant’s employment was terminated at the initiative of the employer and that this occurred on 31 March 2012. For the purpose of s.385 of the Act the Applicant is a person who has been dismissed.

[30] Whilst I note the evidence of Mr Noonan that he was distracted around this time by a death in the family this does not undo what was done at the meeting on 31 March 2012.

[31] There is no dispute that, until 31 March 2012, the Applicant was employed as a casual employee on a regular and systematic basis. She had worked for the swim school for over five years and had a reasonable expectation that the work would continue.

Was the Applicant unfairly dismissed?

[32] In determining if the Applicant was unfairly dismissed I must consider if the termination was harsh, unjust or unreasonable. The Act sets out those matters to which I must have regard in making that decision.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.

[33] I now turn to consider each of these matters.

Was there a valid reason

[34] The Respondent provided evidence that the Applicant had been counselled about her failure to attend work without providing notice that she would not be attending. The Respondent also pointed to evidence of Mr Noonan that he had spoken to the Applicant about his concerns with respect to her attitude and attendance at work. 8 Evidence was given of the Applicant’s alleged poor attendance over the previous twelve months. Evidence was also given of a ‘10 minute meet’ with the Applicant on 7 February 2012 where her attitude and performance were discussed.

[35] Whilst the evidence points to some performance issues with the Applicant nothing was put to me to suggest that these issues provided a valid reason for the termination of the Applicant’s employment.

[36] On the evidence before me I find that there was not a valid reason for the termination of the Applicant’s employment.

Notified of the reason

[37] As the Respondent says it did not terminate the Applicant’s employment it cannot have notified her of the reason for the termination of her employment.

[38] The Applicant says she was told her employment was terminated because she had issues with authority figures and did not abide by the code of conduct. If this was in fact the reason for the termination, the Applicant was not advised of this until the time her employment was terminated. She has never received any reason in writing.

Opportunity to respond

[39] The Applicant says that the meeting she had on 31 March 2012 went for five minutes or so. This was not disputed by the Respondent. There is no basis to conclude that within these five minutes the Applicant was given an opportunity to consider and respond to the matters raised with her.

[40] That there is some dispute as to what was said at the meeting does not change the fact that the Applicant had no opportunity to respond. Everyone agrees the meeting went for about five minutes. This is not sufficient time for the Applicant to consider performance issues and provide a considered response to these.

[41] In Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport 9 a Full Bench of FWA held:

[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.

[42] If the meeting was for the purpose of terminating the Applicant’s employment that decision was obviously taken prior to the meeting and the Applicant did not have an opportunity to respond.

[43] I find that the Applicant was not given an opportunity to respond to issues raised in the meeting of 31 March 2012.

A support person

[44] The Applicant was not given an opportunity to have a support person present at the meeting.

[45] By the way the meeting was called (the Applicant was called in for a quick chat at the end of her shift) and by not advising the Applicant of the purpose of the meeting the Applicant was denied the opportunity to have a support person present.

[46] Whilst it is true that s.387(d) does not require that the employer offer or facilitate a support person for an employee, by not advising the Applicant of the purpose of the meeting and by not providing sufficient notice the employer has effectively refused to allow the Applicant to have a support person.

Unsatisfactory performance

[47] It would appear that the matters put to the Applicant related to her performance.

[48] The Respondent provided evidence of a performance assessment from June 2011 10 and counselling of the Applicant with respect to attendance11 and ‘10 min meet’12 discussion.

[49] There is however no evidence that the Applicant was spoken to about specific performance issues, advised of the standard expected and told that if her performance did not meet the specified standard her employment may be terminated.

Size of the employer’s undertaking

[50] The employer is not a small business although the exact size of the undertaking is not clear. In any event no submissions were made on this point.

Access to human resource expertise

[51] It does appear that the Respondent has limited access to human resource expertise. Mr Noonan commented that the employer was looking to engage more skills in this area.

[52] I have taken this into account in my decision.

Any other matters

[53] I find that the method by which the meeting was conducted did not afford the Applicant procedural fairness. This is true whether the meeting was for the purpose of terminating the Applicant’s employment or if it was to advise her that, for performance reasons her hours were to be reduced.

Conclusion

[54] In all of the circumstances I find that the termination of the Applicant’s employment was harsh, unjust and unreasonable.

Remedy

[55] No submissions have been put on remedy. Directions will be issued to the parties for the filing of written submissions on this question. A further decision will be issued as to remedy once those submissions have been received.

COMMISSIONER

Appearances:

K Box on her own behalf.

D Noonan of the Respondent.

Hearing details:

2012.

Brisbane:

August 22.

 1   Exhibit A1.

 2   Exhibit A1.

 3   See Exhibit R3.

 4   See Exhibit R4.

 5   Exhibit R3.

 6   Exhibit R4.

 7 (1995) 62 IR 200 at 205.

 8   Attached to Exhibit R6.

 9   Print S5897, 11 May 2000.

 10   Exhibit R3.

 11   Exhibit R4.

 12   Exhibit R2.

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