Kaylana Taylor v Roesa Holdings Pty Ltd
[2022] FWC 2258
•16 SEPTEMBER 2022
| [2022] FWC 2258 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kaylana Taylor
v
Roesa Holdings Pty Ltd
(U2022/3387)
| DEPUTY PRESIDENT DEAN | CANBERRA, 16 SEPTEMBER 2022 |
Application for an unfair dismissal remedy – Application dismissed.
Ms Kaylana Taylor has made an application pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy concerning her employment with Roesa Holdings Pty Ltd (Respondent). Ms Taylor claims in her application that she was unfairly dismissed by the Respondent on 3 March 2022.
The Respondent objected to the application on two grounds. Firstly, Ms Taylor was not dismissed but instead resigned voluntarily. Secondly, Ms Taylor does not satisfy the minimum employment period.
Ms Taylor disputed both objections. She contended that she did not resign and that she commenced employment at Crust Bakery Cafe (the Cafe) in Fyshwick, ACT, in August 2019 when the business was operated by another entity. The Respondent took over the business in December 2021 and she remained employed at the Cafe until her employment ceased on or about 3 March 2022.
The Respondent subsequently withdrew its objection in relation to the minimum employment period but maintains the objection that Ms Taylor was not dismissed.
Directions were issued for the filing of materials and the matter was listed for hearing by video on 24 August 2022. At the hearing, Mr Michael Alkan appeared with permission for Ms Taylor and Ms Giada Peloso appeared for the Respondent. Evidence was given by Ms Taylor on her own behalf and Ms Peloso and Mr Jamie Devery for the Respondent.
None of the witnesses were required for cross examination, which has given rise to some difficulty in making findings where events or facts are disputed.
Background and Evidence
Ms Taylor was employed as a Front of House All-rounder at the Cafe.
Ms Taylor said that she also performed a supervisory role. The Respondent rejects this claim and asserts that they only planned to train her to become supervisor.
The events which led to the cessation of Ms Taylor’s employment came about since the Respondent engaged Mr Devery as the Manager at the Cafe on 3 February 2022.
It is uncontroversial that Ms Taylor was disgruntled with her new manager and was vocal in her criticism of him. Ms Taylor claimed that she had attempted on multiple occasions to communicate her concerns about Mr Devery’s performance to Ms Peloso (one of the owners of the Respondent) but her concerns were either rebuffed or not accepted in any meaningful manner.
While it is not clear as to the basis of her criticism, Ms Taylor’s dislike of Mr Devery was evident in the way she interacted with him. Ms Peloso observed that Ms Taylor completely changed her behaviour in the workplace at the time Mr Devery commenced. Ms Peloso stated that Ms Taylor repeatedly engaged in disrespectful behaviour toward him, constantly disregarded his advice, and “tried to shame him” in front of colleagues.
Mr Devery set forth the following incidents pertaining to the alleged inappropriate behaviour of Ms Taylor:
a.She disregarded his request to allow him to make coffee during busy periods.
b.She refused to take her break at the time he requested, responding with words to the effect ‘I will take it at my usual time’ and walked away from him.
c.On one occasion, while he was answering a text from the Respondent on his phone, Ms Taylor said words to the effect: ‘you shouldn’t be on your phone’ to which he responded: ‘If I am ever on my phone in the workplace, it is only for work purposes, please get back to work’.
Mr Devery said that he had a meeting with Ms Taylor in order to resolve the obvious issue between them. During that brief meeting, he asked Ms Taylor why she displayed a different attitude towards him in comparison to other staff, to which she responded: ‘You wouldn’t understand’. Mr Devery said that at the end of that conversation he said to Ms Taylor words to the effect: “You need to take direction, we don’t have to get along but we need to have a working relationship.”
Ms Taylor’s response to the series of incidents outlined by Mr Devery was that she recalled Mr Devery once suggesting or requesting that he take over the coffee making task. However, she considered it as a question rather than a direction and she replied ‘I’m okay’. She was not told that Mr Devery was displeased about the incident.
Ms Taylor denied refusing Mr Devery’s direction to take a break at his requested time. She said:
“I did not refuse this request. I explained to Mr Devery that I had made arrangements to carry out personal chores during my normal regular break time and that his request was last minute. I asked if he could arrange for another employee to take their break instead of me. I did not walk away. Mr Devery appeared displeased about this at the time, however, I confirm I was not told I would receive a warning over this nor that my employment was in jeopardy.”
Ms Taylor agreed that she had a meeting with Mr Devery when she was told that ‘we don’t have to like each other but you do need to take direction from me’. She said that she replied to Mr Devery words to the effect of “I’m happy to take direction from you and if you feel I haven’t done so previously please understand I have ADHD, I ask that you are clear and calm with your directions to me down the track”.
Incident on 27 February 2022
Ms Taylor was sent home by the Respondent before the end of her shift on 27 February 2022. Both Mr Devery and Ms Taylor gave evidence in respect of the events preceding her exit from the premises.
Mr Devery stated that the following exchange took place earlier on that day when Ms Taylor was cleaning an oven:
Mr Devery: “How long would it take to finish the ovens?”
Ms Taylor “Why?”
Mr Devery: “So I can organise a break once you are finished”
Mr Devery said that he repeated the question when Ms Taylor’s answer was not forthcoming. Ms Taylor then appeared angry and said words to the effect: ‘why don’t you clean the ovens!’ and walked away. At that point, according to Mr Devery, one of the business owners stepped in and spoke to Ms Taylor about her behaviour.
In her response to Mr Devery’s account of the incident on 27 February 2022, Ms Taylor said:
“I accept that I walked off on this occasion and that my interaction with Mr Devery was not as polite as I would have wanted it to be. I felt confronted by Mr Devery, he was in my face, and I felt that he was invading my personal space. I told Mr Devery that I couldn’t be sure how long it would take to clean the ovens as it depends on how dirty the other ovens (total of 5 ovens) were which I had not had a chance to sight. He wouldn’t accept that as a response and kept pressing me for a timeframe.
The whole situation became overwhelming or tense and I decided regrettably to remove myself from the situation, unfortunately that is now being used against me in these proceedings.”
Mr Devery said that later the same day Ms Taylor again refused to take his direction, scoffed at him and walked away. After discussing the matter with the owners, it was decided that Ms Taylor “should be sent off shift due to her actions.”
Meeting on 1 March 2022
Ms Taylor was next asked to attend a meeting with the Respondent on 1 March 2022. It was subsequent to this meeting that Ms Taylor’s employment with the Respondent ceased and the issue arises as to whether Ms Taylor resigned or was dismissed.
Despite Ms Taylor’s argument that the Respondent did not fully disclose the nature or agenda of the meeting, it was commonly accepted that the purpose of it was to resolve the difficulties in the work relationship between Ms Taylor and Mr Devery with a view to improving the situation.
There is further a discrepancy in the evidence concerning the date Ms Taylor was first notified of the meeting. Ms Taylor said that she was notified on 28 February 2022 at or around 8:35pm that she was required to attend a meeting the next day at 10:00am. Ms Taylor took issue with the lack of notice provided and contended that she was not afforded the opportunity to obtain a support person and did not have adequate time to seek advice or prepare an adequate response.
Ms Peloso’s evidence was that she informed Ms Taylor of the meeting by telephone on 27 February after she was sent home, providing almost 48 hours notice. Ms Peloso said that she received a telephone call from Ms Taylor the next day on 28 February advising that she would be accompanied by her mother to the meeting as a support person. However, Ms Taylor subsequently arrived at the meeting alone.
Ms Taylor and Ms Peloso also gave their own accounts of what transpired at the meeting. According to Ms Taylor:
“At the meeting, I was given the opportunity to reiterate the grievances and concerns I had regarding performance. However, these concerns were immediately disregarded by the Respondent, and it was alleged that I was being dishonest.
The Respondent then alleged that I was responsible for a negative review that was posted on their online Google listing. I affirm that I was not responsible for the review, nor do I know who was.
This conclusion appears to have been entirely based on the sole fact that the review was critical of the newly appointed mangers performance, and I have also been critical of their performance. This was not substantiated by any actual evidence at the meeting, nor since. The Respondent then claimed it was defamation, to which I responded it seemed reflective of the newly appointed manager’s performance in my own experience, and reaffirmed that I was not responsible for the post.
The Respondent then advised me that I had ‘an hour’ to remove the post and threatened termination of my employment and defamation proceedings.
I have been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), which the Respondent is aware of. Due to this, the manner in which I was being treated in the meeting and the lack of preparation or support person present, I was overwhelmed, anxious, and greatly distressed. In these circumstances, I felt compelled to leave the room to recompose myself. I admit that I said something to the effect of ‘I hope your business fails’, but I assert that this was a result of the above, and was clearly a product of my emotional state as of their creation.
As I left the room, the Respondent followed me, saying words to the effect of ‘Don’t forget, you have an hour to take down the review or face termination and legal action!’”
Ms Peloso’s evidence pertaining to the meeting was that:
“When arrived at the meeting the applicant was aggressive.
While discussing the matter the Applicant was denying events that happened in front of our own eyes (owners) and when we disagreed with her statements the Applicant started to lose control and became very emotional and aggressive.
The Applicant accused us of not trusting her, after that the applicant stood up, wished the business to fail and left the premises.”
Ms Peloso asserted that the Respondent was made to understand that Ms Taylor had a connection with the negative review and therefore asked her to take it down. Ms Peloso denied that Ms Taylor was threatened with dismissal because of the review. In addition, Ms Peloso pointed to a message posted to the work chat group by Ms Taylor[1] immediately after the meeting which reads ‘guys unfortunately looks like he’s here to stay might wanna find a new job’, which she said alluded to Ms Taylor’s intention to jeopardise the business by inviting her colleagues to look for new jobs.
Events after the meeting
It is not in dispute that after the meeting Ms Taylor ceased attending the cafe and was not rostered for any work.
Ms Taylor said that she contacted the Respondent on 3 March 2022 to request an employment separation certificate as it had become clear that she had been dismissed. After being told that an employment separation certificate would not be provided because she had resigned, she expressed to the Respondent that she did not resign and could return to work. However, she was told that there were no more shifts available for her.
Ms Taylor’s initial email of 3 March 2022 and the subsequent exchanges between her and Ms Peloso are set out below.
3 March 2022 at 3:03 pm
“Hello Giada,
The 1st March I was terminated from your business. I am okay with this outcome, however, I have debts to pay and will require an employment separation certificate for government support/benefits ASAP.
Thanks
Kaylana”
3 March 2022 at 3:31 pm
“Hi Kaylana,
Thank you for your email, unfortunately as you were the one resigning your position we are not obliged to release any separation certificate.
Hope you are well!
Have a good continuation,
Giada”
3 March 2022 at 4:47 pm
“Hi Giada,
I was informed I was terminated on the grounds that I had inappropriate behaviour and an accusation of a negative review, at no point did I resign. In this case if I haven’t been terminated I would like to know when I can return back to work?
Thank you”
3 March 2022 at 10:05 pm
“Hi Kaylana
You were invited for a meeting on the morning of the first of March, after 2 verbal warnings, to discuss your disrespectful behaviour toward the new manager that has been happening since he has started to work for the company 4 weeks ago. This meeting was organised to discuss what was happening at work during this period of time as, the whole environment was becoming toxic due to all the ears whispering that you were conducing, trying to push down the manager in the hope that we would eventually fire him. When you came at the meeting you were very aggressive and didn’t manage to maintain a professional behaviour. At one point you stood up and said ‘I hope your business fails’, after that you walked direction of the back and left. After that you sent a message in the work group chat inviting your colleagues to leave the job as you didn’t succeed in getting the manager fired.
Unfortunately, we currently don’t have any shift for you.
Thank you for understanding!
Giada”
Ms Taylor gave oral evidence that whilst employed with the Respondent she earned an average of $803.00 per week. She said that since her employment with the Respondent ended, she was able to obtain some casual work but the work was not stable. She earned an income of about $217.00 weekly in the eight weeks prior to the hearing.
Submissions
Ms Taylor
Ms Taylor relied on written submissions filed on her behalf by Mr Alkan. It was contended that Ms Taylor’s employment was terminated at the initiative of the Respondent and the dismissal was harsh, unjust and unreasonable.
It was submitted that Ms Taylor retreated from the meeting on 1 March in a highly distressed manner as a result of the extreme pressure caused by the Respondent, exacerbated by her ADHD, in circumstances where:
· the Respondent scheduled a disciplinary meeting without prior notice of the topic or disciplinary nature of the meeting and without a support person being made available or suggested; and
· at the meeting, the Respondent disregarded the concerns raised by the Applicant, accused the Applicant of posting a negative Google review; and threatened termination and defamation proceedings against the Applicant should the review not be removed within an hour.
In support of her contention that she was dismissed by the Respondent and therefore meets the criterion for being protected from unfair dismissal, her submissions cited various decisions and outlined in summary the following:
a. the circumstances clearly point toward this being a ‘heat of the moment’ type situation, in particular the distress she was under given her ADHD;
b. she gave no clear or unambiguous resignation (see Ngo v Link Printing Pty Ltd (1999) (Ngo) 94 IR 375;
c. the Respondent is attempting to treat the mere act of her leaving the room which was in the heat of the moment and under extreme pressure caused by the Respondent as a resignation (see Ngo and Kwik-Fit (GB) Ltd v Lineham (Kwik-Fit) [1992] ICR 183;
d. the fact that she, in the immediate days after the meeting, promptly communicated that she was willing to continue working for the Respondent, was consistent with her claim that the mere act of leaving the meeting was not intended to constitute a resignation (see Ngo and Kwik-Fit); and
e. by failing to recognise the special circumstances that had arisen and continuing to act as though she had resigned, the Respondent constructively dismissed her on its own initiative (see Marks v Melbourne Health[2011] FWA 4024).
In addition, it was submitted that the Respondent had a predetermined intention to end Ms Taylor’s employment. In this regard Ms Taylor pointed to the Respondent placing an online advertisement for a position substantially similar to hers in the days following the meeting.
Ms Taylor’s submissions argued that in the above circumstances, the Respondent’s actions amounted to a constructive dismissal.
Turning to the criteria under s.387 of the Act for determining whether a dismissal was harsh, unjust and unreasonable, the submissions that were made on behalf of Ms Taylor are summarised as follows:
a. There was no valid reason for her dismissal. No questions were raised relating to her work performance, instead the Respondent’s issue being the disagreements between Ms Taylor and her newly hired manager. Any communication relating to this ongoing issue were casual, non-disciplinary in nature and lacked the precision and follow-up, rendering any such communication insufficient to constitute warnings of any weight in the circumstances (see Fox v Robert Oar P/L t/a Ruralquip [2015] FWC 2826).
b. The Respondent’s conduct amounts to a constructive dismissal, and therefore Ms Taylor was not given formal reasons for the dismissal.
c. By summarily dismissing Ms Taylor, the Respondent failed to give a meaningful opportunity for her to respond to any of their concerns.
d. The Respondent unreasonably failed to provide Ms Taylor with the opportunity to have a support person present and failed to take any reasonable steps to accommodate her ADHD condition.
e. Ms Taylor had not been formally warned or disciplined by the Respondent regarding the disagreements prior to the meeting.
f. The Respondent’s belief that the review could only have been left by Ms Taylor is not substantiated.
g. Ms Taylor was not informed by the Respondent that her employment was in jeopardy or at risk of termination.
h. Ms Taylor was not afforded procedural fairness. The Respondent failed to provide Ms Taylor with sufficient and reasonable notice of the meeting; failed to afford her the opportunity to have a support person present, and failed to advise her of the disciplinary nature of the meeting, especially in recognition of her ADHD condition and the disciplinary nature of the meeting.
i. The dismissal put Ms Taylor at risk of significant personal and economic hardship given her circumstances and the current economic climate (see Ricegrowers Co-operative Limited v Schliebs PR908351).
j. Any decision to terminate Ms Taylor’s employment due to alleged unsatisfactory performance or conduct without a reasonable period of time to afford her the opportunity to improve is unacceptable (see Guretti v The Director General Department of Education 2013 WAIRC 00779).
k. The Respondent’s actions as abovementioned constituted termination, and that the termination was:
i. harsh, unjust, and unreasonable; and
ii. disproportionate and unreasonable.
For the reasons set out above, it was submitted that the dismissal of Ms Taylor was unfair.
Respondent
Ms Peloso submitted that Ms Taylor resigned and was never dismissed. It was submitted that her action of leaving in the middle of a meeting while wishing the business to fail constitutes action indicative of her resignation.
In the alternative, Ms Peloso contended that Ms Taylor’s conduct fall into the category of serious misconduct. On this issue, Ms Peloso’s submissions include the following:
a.The applicant completely changed her behaviour toward the workplace since the manager started.
b.The applicant repeatedly used disrespectful behaviour toward the manager, constantly disregarding his advice and trying to “shame his name” in front of colleagues.
c.The applicant was asked about her relationship with the new manager firstly by Ms Peloso (Owner) at which the Applicant respondent with ‘everything is going alright’.
d.The applicant, after few episodes of poor behaviour and performance, was asked to speak about the issue in a non-formal meeting with the manager, Mr Devery.
e.The applicant refused to take breaks at the time requested.
f.The applicant was then invited to speak up in another non-formal meeting by Ignace Diompy (co-owner). Also in this meeting, the applicant declared that there were no issues occuring and after that the applicant asked if the manager had the ability to fire her.
g.The applicant’s behaviour didn’t improve after any of these attempts to discuss the matter with her, and she continued to treat the manager with attitude.
h.Her behaviour changed since the manager started and changed only toward the manager and not toward the rest of the employees.
The applicant was given two verbal warnings.
j.The applicant wasn’t given shifts for the following reasons:
i.The applicant through her behaviour made the Respondent understand she was not willing to work any longer for the business.
ii.When asking to come back to work the business was no longer looking for an employee of her experience but senior front of house members that could act as Supervisor.
iii.The applicant failed to perform work related tasks in the past month and so was unsuitable to cover her position.
iv.The applicant wished the business would fail and therefore would not act in the best interest of the business.
Ms Peloso rejected the contention that the Respondent predetermined the outcome of the meeting by seeking out a replacement for Ms Taylor. She explained that the job advertisement was placed as one of the regular workers was relocating to Sydney due to her studies and her last day of work was 26 February 2022.
Was Ms Taylor dismissed or did she resign?
The Commission has no jurisdiction to deal with Ms Taylor’s application if she was not dismissed.
The meaning of ‘dismissed’ is defined in s.386(1) of the Act which states:
(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.
Having considered the evidence before me, I am satisfied that Ms Taylor did not resign. As was correctly pointed out in Ms Taylor’s submissions, a resignation can only be effective if it is clear and unambiguous.
In this case, while Ms Taylor did walk out of the meeting on 1 March by saying she hoped the business failed, on balance I am satisfied she did not clearly communicate her intention to resign, either verbally at that time or subsequently in writing. In other words, I am not satisfied that Ms Taylor’s conduct in the period preceding the cessation of her employment amounted to the giving of a clear and unambiguous resignation.
As a result, I find that Ms Taylor did not resign and that the termination of her employment was not at her own initiative. I conclude that Ms Taylor was terminated on 3 March 2022 at the time she was informed by the Respondent that there were no more shifts for her.
I now turn to consider if Ms Taylor’s dismissal was unfair within the meaning of the Act.
Was the dismissal unfair?
A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
385 What is an unfair dismissal
A person has been unfairly dismissed if the 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.
I have found that Ms Taylor was dismissed and there is no dispute that subsections (c) and (d) do not apply.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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 the FWC considers relevant.
The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd[2] as follows:
“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[3]
Valid reason - s.387(a)
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[4] and should not be “capricious, fanciful, spiteful or prejudiced.”[5] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[6]
In cases concerning conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred.[7] The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct and therefore acted in the belief that the termination was for a valid reason. The Commission must make a finding as to whether the conduct occurred based on the evidence before it.[8]
Further, the Commission does not ‘stand in the shoes’ of the employer but will need to be satisfied that the termination of the employee was for a valid reason.[9]
There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.
I am satisfied that the Respondent had a valid reason to dismiss Ms Taylor. There is no dispute that at the meeting on 1 March ended with Ms Taylor stating that she hoped her employer’s business failed, then she walked out. Further, there is no dispute that she subsequently posted a message to the work chat group encouraging other staff to leave the employ of the Respondent and find another job. While it may be arguable that her statement about hoping the business failed when walking out of the meeting was given in the heat of the moment, the post in the work chat group made by Ms Taylor after the meeting concluded is not in the same category.
In the context of Ms Taylor’s obvious disregard of Mr Devery and her lack of willingness to take direction from him or assist him in a way that would be expected in a workplace, I am satisfied that her conduct irreparably damaged the trust and confidence necessary for a functioning working relationship and therefore constituted a valid reason for her dismissal.
In all the circumstances, I am satisfied and find that the Respondent had a valid reason for the termination of Ms Taylor’s employment.
Notification of the valid reason and opportunity to respond - s.387(b) and (c)
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[10] in explicit terms[11] and in plain and clear terms.[12] In Crozier v Palazzo Corporation Pty Ltd[13] a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated 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 170(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.”[14]
An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied 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.[15] This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[16]
The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Ms Taylor before her dismissal was effected.
Ms Taylor argued that she was not afforded procedural fairness because the Respondent failed to provide her with sufficient and reasonable notice of the meeting; failed to afford her the opportunity to have a support person present, and failed to advise her of the disciplinary nature of the meeting, especially in recognition of her ADHD condition and the disciplinary nature of the meeting.
Having considered the evidence, I am satisfied that Ms Taylor was provided with sufficient notice of the meeting, even if it was as Ms Taylor contended given the evening before. Further, Ms Taylor does not dispute she was provided with information as to the nature of the meeting, that being to discuss the issues she had with Mr Devery.
Further, I am satisfied that Ms Taylor was given a reasonable opportunity to respond to the concerns held by the Respondent during the meeting. So much is clear even from her own evidence in this regard.
I am not satisfied that Ms Taylor was denied the opportunity to have a support person present. It was for Ms Taylor to bring a support person if she so wished. It was not the responsibility of the Respondent to organise one for her. There is no evidence to suggest that Ms Taylor expressed any concern as to the timing of the meeting and requested the meeting be scheduled for a later time or date.
I accept that Ms Taylor was not informed by the Respondent that her employment was in jeopardy prior to the meeting on 1 March. However, it was not reasonably foreseeable that Ms Taylor would express her wish during the meeting that her employer’s business would fail before walking out, nor that she would actively encourage other staff to leave the employ of the Respondent, which are the matters that in my view constitute a valid reason for her dismissal.
Finally, I do not accept that Ms Taylor’s ADHD diagnosis in any way prevented the Respondent from discussing with her what it considered to be inappropriate behaviour towards Mr Devery. Nor can the Respondent be expected to know what adjustments should be made for Ms Taylor unless she specifically informs them of same. There is no evidence before me that Ms Taylor took any such steps.
Unreasonable refusal by the employer to allow a support person - s.387(d)
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
As discussed above, I am satisfied on the evidence that Ms Taylor was not refused a support person.
Warnings regarding unsatisfactory performance - s.387(e)
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))
The Respondent is a relatively small business with 19 employees. I consider that its size and the absence of dedicated human resource expertise may have impacted on the procedures followed by it in effecting the dismissal.
Other relevant matters - s.387(h)
I do not consider there are any other relevant matters that have not already been considered.
Conclusion
As noted earlier, it is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision-making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.
Having had regard to each of the matters specified in s.387 of the Act and for the reasons set out above, I am satisfied that the dismissal of Ms Taylor was not harsh, unjust or unreasonable, and was therefore not unfair. Accordingly, the application is dismissed.
DEPUTY PRESIDENT
Appearances:
M Alkan for Kaylana Taylor.
G Peloso for Roesa Holdings Pty Ltd.
Hearing details:
2022.
By video:
August 24.
[1] See Annexure KT-2E to Exhibit 1.
[2] (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
[3] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[4] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[5] Ibid.
[6] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[7] Edwards v Giudice (1999) 94 FCR 561.
[8] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].
[9] Miller v University of New South Wales (2003) 132 FCR 147.
[10] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
[11] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[12] Previsic v Australian Quarantine Inspection Services Print Q3730.
[13] (2000) 98 IR 137.
[14] Ibid at 151.
[15] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[16] RMIT v Asher (2010) 194 IR 1, 14-15.
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