Kim Stevens v William Adams Pty Ltd
[2022] FWC 1851
•18 JULY 2022
| [2022] FWC 1851 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kim Stevens
v
William Adams Pty Ltd
(U2022/4491)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 18 JULY 2022 |
Application for an unfair dismissal remedy – persistent failure to attend for work on time and to use company time recording system – valid reasons for dismissal – applicant’s admission in cross-examination to lying about vaccination status – further valid reason – claim of sexual harassment without substance – dismissal not related to claim – application dismissed
This decision concerns an unfair dismissal application made by Ms Kim Stevens under s 394 of the Fair Work Act 2009 (Act). Ms Stevens was employed by William Adams Pty Ltd (company) as a used equipment inventory coordinator. She was dismissed on 1 April 2022 for persistently arriving late for work and for failing to use the company’s time recording system. Ms Stevens contends that the real reason for her dismissal was connected to a sexual harassment complaint she had made in April 2021 concerning a remark made by a co-worker which she believed had suggested that she had had an affair with a supplier. She contends that there was no valid reason for her dismissal, that her termination was unfair, and that she should be awarded compensation.
The background to this matter dates back to early 2021, when the company decided to replace its manual time keeping system with an electronic platform. Ms Simone McKay, the company’s human resources manager, gave evidence that in April 2021 the company advised its workforce that it was introducing a new time and attendance recording system called TANDA. The company wanted to ensure that it was accurately and efficiently recording all hours of work, particularly for award covered employees who were paid an annualised salary. Ms Stevens raised an objection to using TANDA because she was concerned about the system’s ability to collect biometric data. The company then looked into the biometric functionality of TANDA, determined that it was not needed, and disabled it. Ms Stevens was advised of this decision. She then sent a message to her manager, Mr Fabio Minuzzo, confirming that she would use the new system.
TANDA made it easier for the company to check when employees were starting work. Ms McKay said in her evidence that in August 2021, Mr Minuzzo told her that Ms Stevens was not arriving for work on time, and that she had repeatedly failed to record time correctly on the TANDA system. On 23 August 2021 Mr Minuzzo gave Ms Stevens a letter counselling her about these concerns. But there was no improvement. On 15 October 2021 Mr Minuzzo gave Ms Stevens a written warning about the concerns. But still Ms Stevens continued to arrive for work late. On 11 November 2021 Mr Minuzzo issued Ms Stevens with a final warning which stated that if there was no improvement the company would consider disciplinary action, including dismissal. Ms Stevens continued to arrive late for work. At a meeting on 25 November 2021, Mr Minuzzo told Ms Stevens that if she continued to behave this way she could be dismissed.
In late November 2021, Mr Minuzzo ceased to be Ms Stevens’ manager, and Ms Aleks Arandelovic took over this function. Ms Arandelovic gave evidence that on 3 February 2022 she conducted Ms Stevens’ performance review and raised with her the company’s concerns about her conduct. Ms Stevens replied that she had been stressed because of certain rumours about her relating to a sexual harassment complaint that she had made the previous year, and that this was the reason she had been arriving late for work. Ms Arandelovic offered to raise the matter with human resources but Ms Stevens said that she did not want to share the details of the complaint with her.
Ms Arandelovic’s evidence was that following the performance review, Ms Stevens continued to be late for work and persisted in failing to use the TANDA systems as required. From 15 March to 28 March 2022 Ms Stevens did not record any time on TANDA and was late for work by an average of 40 minutes each day. At a meeting on 29 March 2022, Ms McKay and Ms Arandelovic gave Ms Stevens a ‘show cause’ letter which stated that the company was now considering terminating her employment because of her continued failure to use the TANDA system and to arrive for work on time. The letter asked Ms Stevens to provide any information that she would like the company to consider before making a decision about her ongoing employment. The evidence of Ms McKay and Mr Arandelovic was that Ms Stevens said: ‘Are you fucking kidding me?’ and then said words to the effect that she was going to bring the biggest sexual harassment case in Australian history. Ms McKay asked Ms Stevens about her complaint and requested her to provide details, but she declined to do so. The evidence of Ms McKay and Ms Arandelovic was that Ms Stevens then turned to Ms Arandelovic, pointed at her, and said that she would have to testify in court and that people who lie on the stand get deported. Ms Arandelovic said that she perceived the comment to be one that was designed to intimidate and humiliate her.
The next day, Ms Stevens sent a reply to the show cause letter, in which she said, among other things, that she had been the subject of malicious rumours, that it was illogical to terminate her employment, and that she was appalled by Ms McKay’s request that she provide evidence of her sexual harassment complaint. Ms Stevens said that she found it curious that the company was proposing to terminate her employment at a point when she was about to bring the largest sexual harassment case in Australian history and that as part of the settlement of the claim, she would acquire ownership of the company.
Having considered Ms Stevens’ response to the show cause letter, Ms McKay and Ms Arandelovic concluded that her continued employment with the company was untenable. At a meeting on 1 April 2022, Ms McKay told Ms Stevens that the company had decided to terminate her employment effective immediately because of her consistent failure to arrive for work on time and to comply with time recording obligations. Ms McKay gave Ms Stevens a termination letter confirming the reasons for her dismissal. The letter stated that Ms Stevens would be paid three weeks in lieu of notice.
Ms McKay’s evidence was that after she gave Ms Stevens the termination letter, Ms Stevens screamed at her, called her a ‘fucking cunt’ and said that she would ruin Ms McKay’s career. Ms McKay told Ms Stevens that she was not to go to the used equipment building and that if she had left anything at her desk it would be forwarded to her. Ms Stevens ignored her direction and ran into the used equipment building, repeatedly screaming at the employees present that they were ‘all fucking cunts’ and that she hated them. Ms McKay and Ms Arandelovic then escorted Ms Stevens from the building to the carpark. Ms Stevens denies calling Ms McKay a ‘fucking cunt’ but does not otherwise dispute this account.
The evidence of Ms McKay and Ms Arandelovic was that they did not know what Ms Stevens’ sexual harassment complaint from 2021 was about. Ms Stevens had not provided them with details about it at the meeting on 1 April 2022 or in her response to the show cause letter.
However, two other company witnesses gave evidence about this matter. Mr Minuzzo said that on 22 April 2021 Ms Stevens had sent him an email stating that a co-worker had accused her of having an affair with ‘Vic Low Loaders’, a transport supplier to the company, and that she was very upset. Mr Minuzzo sought the assistance of Ms Kirsten Waller, who is the company’s human resources lead. Ms Waller’s evidence was that she contacted the co-worker, who told her that Ms Stevens had approached him with several invoices to sign for Vic Low Loaders, and that he had said to her: ‘You must love Vic Low Loaders’. Ms Waller’s evidence was that some days later she convened a mediation, during which the co-worker apologised to Ms Stevens for any misunderstanding about his remark, and that Ms Stevens said that she accepted his apology. Later that day Ms Stevens told Ms Waller that she had a feeling that other people were spreading rumours that she was having affairs, and that although she had no evidence, she could sense that this was the case because she was able to read body language. Ms Waller asked Ms Stevens whether she would like her to investigate the matter and Ms Stevens said no and did not raise the matter with her again. Ms Stevens did not say that she disagreed with Ms Waller’s evidence about these matters.
Ms Stevens’ evidence was comprised substantially of two documents. In the first, a one page witness statement, Ms Stevens said that she had been dismissed by the company under false pretences and that the reasons given for her dismissal were a guise to cover up ongoing sexual harassment. Ms Stevens said that she had been falsely accused of having an affair with one of the company’s transport suppliers, and that about two weeks later, her employment had nearly been terminated because of her refusal to use TANDA, which refusal was based on her concerns about TANDA’s biometric functionality, which she believed to be in breach of the Privacy Act 1988. Ms Stevens said that she eventually agreed to use TANDA, but only under duress, in order to keep her job. Ms Stevens said that she believed that it was only because of her sexual harassment complaint of April 2021 that she had nearly lost her job at that time. Ms Stevens said that she had continued to face sexual and non-sexual harassment as well as bullying, but she did not refer to details. She said that the company’s inability to deal with these issues was the real reason for her dismissal.
In a longer second document entitled ‘Applicant’s outline of arguments’, which was a combination of submissions and evidence, Ms Stevens elaborated on her reasons for objecting to TANDA and expressed various criticisms of the manner in which the company rolled out TANDA in the workplace. Ms Stevens also stated that in October 2020, Mr Minuzzo had threated her employment in connection with her concerns about the use of TANDA; that she only agreed to use TANDA after she was ‘almost terminated’ in May 2021; that she has lodged a complaint with the Office of the Australian Information Commissioner concerning the company’s contraventions of privacy laws; that she had been in line for multiple promotions but that this had caused jealousy and insecurity in other people and that for this reason the promotions did not occur; and that various disciplinary meetings and measures taken against her by the company were in the nature of harassment. Ms Stevens also stated that during her employment she had been leered at by unspecified persons, that she had been the subject of other rumours, that intimate photographs of her had been spread around the company and that the persons responsible would go to jail.
There is one further evidentiary matter that must be mentioned. In response to a message from the Commission requesting the parties to confirm their vaccination status ahead of the attendance hearing that was listed for 14 July 2022, Ms Stevens replied that she was not vaccinated against COVID-19. The hearing was then relisted to be conducted by Microsoft Teams. Ms McKay said in her evidence that she was surprised to learn that Ms Stevens was not vaccinated, because on 27 November 2021 she had sighted Ms Stevens’ immunisation certificate that purported to confirm that she had received two doses of an approved COVID-19 vaccine. The company had required Ms Stevens and other employees to produce evidence of their vaccination status, in order to ensure that it complied with Victorian public health orders, pursuant to which employers in certain sectors were required to prevent unvaccinated workers from attending the workplace. In cross-examination, Ms Stevens was asked why she had lied in her correspondence to the Commission. Ms Stevens replied that she had lied to the company, and that in fact she was not vaccinated. This suggests that the vaccination certificate that she showed to the company was a forgery. I will advise the General Manager of the Commission about this matter for the purpose of considering a referral to the appropriate authorities for investigation.
Findings
I make the following factual findings. First, I accept the evidence of Ms McKay and Ms Arandelovic about the reasons for which the company terminated Ms Stevens’ employment. It was clear, convincing, and entirely credible. It is not in dispute that Ms Stevens was persistently late for work. Ms Stevens stated in her F2 application that she had been late for work nearly every day for four years. She acknowledged in her oral evidence that she had failed to use the TANDA system consistently. She had been repeatedly warned about both of these things. These are obvious and inherently believable reasons why an employer would wish to terminate an employee’s employment.
Secondly, I find that the remark that was the subject of Ms Stevens’ complaint of April 2021 was not sexual in nature. Ms Stevens did not allege that the co-worker made any reference or allusion to her having an affair with any particular person at Vic Low Loaders. The words that caused her offence were ‘You must love Vic Low Loaders’. Vic Low Loaders is a corporation. Ms Stevens acknowledged in her oral evidence that she understood the comment to have alleged that she had had an affair with a corporation, and that this did not make sense. I find that the relevant words, spoken in the relevant context, did not carry any sexual or sexualised content or connotation.
Thirdly, and in any event, I find that Ms Stevens’ dismissal was unconnected to her complaint of April 2021, firstly because Ms McKay and Ms Arandelovic were unaware of it and secondly because the reasons for dismissal were clearly the ones referred to above.
Fourthly, I find that the company had no knowledge of any other allegations of sexual harassment against Ms Stevens. Ms Stevens acknowledged in cross-examination that she did not make any other complaints of sexual harassment to the company, aside from the complaint of April 2021. She said that the reason she did not want to do so was because shortly after the incident with the co-worker in April 2021, she was nearly dismissed. I do not accept this. The discussions that took place between Ms Stevens and various managers at that time concerned the use of TANDA and her objections to its biometric features. And I do not accept that she was nearly dismissed at this time.
Fifthly, I find that Ms Stevens’ statement to Ms Arandelovic on 29 March 2022 that she would be deported if she gave false evidence was highly inappropriate and discriminatory. I infer that Ms Stevens sought to convey that Ms Arandelovic might be deported for no reason other than the fact that she has a surname that is not Anglo-Celtic. This behaviour is completely unacceptable.
Consideration
Section 396 of the Act requires that I decide four matters before considering the merits of the application. I am satisfied of the following. First, Ms Stevens’ application was made within the 21-day period required by s 394(2) of the Act. Secondly, Ms Stevens was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy. Fourthly, the company is not a small business, and the Small Business Fair Dismissal Code is not relevant.
For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387. The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). Such a reason is one that is valid in the sense that it was a good or sufficient reason, and also a substantiated reason. A valid reason is one that is sound, defensible and well-founded.
Both of the reasons for dismissal cited by the company were in my view valid reasons. First, Ms Stevens had persistently failed to arrive for work on time. Secondly, she had repeatedly failed to use the TANDA system. She had been directed to do both of these things. The directions were both lawful and reasonable. She was therefore contractually obliged to follow them. I do not propose to set out the caselaw on lawful and reasonable directions. It suffices to note that the directions were lawful because they involved no illegality and fell within the scope of Ms Stevens’ contract of employment. I do not consider that the direction to use TANDA entailed any contravention of the Privacy Act. There can be no doubt that the direction to start work on time was a lawful one. The directions were also reasonable. The company had sound reasons for wanting to replace its manual time recording system with an effective and efficient electronic platform. It considered Ms Stevens’ concerns about the biometric functionality of the system and decided to disable it so as to allay the concerns. The direction to start work on time was inherently reasonable. Ms Stevens suggested that she had been late because of stress surrounding rumours about her, but it has not been established that there were in fact any rumours. And in Ms Stevens’ own words from her F2 application, she was late ‘nearly every day for four years and it had never mattered’, until she raised her concerns about TANDA. She also told Mr Minuzzo that the reason for her lateness was connected to the traffic on the Monash freeway. I do not accept that there were rumours about Ms Stevens, or that any stress connected to any belief she may have had that such rumours existed was a reason for her lateness.
It is well-established that an employer may rely upon the misconduct of an employee discovered after dismissal as a valid reason for dismissal. A third valid reason for dismissal was the fact that Ms Stevens lied to the company about being vaccinated. This is a grave matter. It was serious misconduct, which would have warranted summary dismissal. The company was prohibited by public health orders from allowing unvaccinated workers to attend the workplace. It was subject to penalties for contraventions of its obligations under the Public Health and Wellbeing Act 2008. Ms Stevens admitted that she lied to the company about being vaccinated in order to be able to come to work. This was a fundamental breach of her contract of employment. This alone would have justified her dismissal.
Finally, I note that the appalling conduct of Ms Stevens at the termination meeting on 1 April 2022, in which she called her colleagues ‘fucking cunts’, occurred after she had been dismissed and therefore cannot constitute misconduct.
In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their conduct or capacity (ss 387(b) and (c)). Both of these things occurred in this case. The company notified Ms Stevens of the two reasons for her dismissal and gave her an opportunity to respond to allegations at the meeting on 29 March 2022 and through her response to the show cause letter.
As to the other matters which the Act requires the Commission to take into account, the company did not refuse, unreasonably or otherwise, to allow Ms Stevens to have a support person present to assist in discussions relating to the dismissal (s 387(d)). If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. The reasons that I have found to be valid reasons for dismissal did not relate to performance. However, Ms Stevens was nevertheless warned about her conduct on numerous occasions.
The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f), (g)). The company is not a small employer. However, these factors do not ‘raise the bar’ for a larger employer. It is rather smaller employers of whom less might be expected in relation to procedural elements of a dismissal. These considerations carry no weight in the analysis of whether the dismissal of Ms Stevens was unfair.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s 387(h)). I take note of the fact that the company was, in my opinion, very patient with Ms Stevens and afforded her ample opportunity to improve her timeliness and her use of the TANDA system. Dismissal was a proportionate response to Ms Stevens’ failure to address the company’s concerns. I note that Ms Stevens received payment in lieu of notice when, as it transpired, the company would have had cause to dismiss her summarily for the serious misconduct for lying about her vaccination status.
Conclusion
The company terminated Ms Stevens’ employment for two clear valid reasons. Ms Stevens was given a reasonable opportunity to address the company’s concerns about her conduct but she did not do so. Unbeknown to the company at the time, there was also a third valid reason for her dismissal, namely the fact that she had lied to it about her vaccination status. The dismissal of Ms Stevens by the company was not harsh, nor was it unjust or unreasonable. It was therefore not unfair. Ms Stevens’ application is dismissed.
DEPUTY PRESIDENT
Appearances:
K. Stevens for herself
J. O’Brien for William Adams Pty Ltd
Hearing details:
2022
Melbourne
14 July
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