Kirby Ann Maczkowiack v B & a Gleeson Pty Ltd T/A Pinky's Pizza - Portland

[2010] FWA 3940

[2010] FWA 3940

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Kirby Ann Maczkowiack
v
B & A Gleeson Pty Ltd T/A Pinky's Pizza - Portland
(U2010/5362)

COMMISSIONER FOGGO MELBOURNE, 24 MAY 2010

Termination of employment – jurisdiction – Small Business Code of Conduct – arbitration.

[1] This is an application lodged pursuant to s.394 of the Fair Work Act 2009 (the Act) by Ms Kirby Ann Maczkowiack (the Applicant) seeking remedy for her alleged unfair dismissal from employment with B & A Gleeson Pty Ltd t/as Pinky’s Pizza – Portland (the Respondent).

[2] The Employer’s Response filed by the Respondent claimed that the reason for the dismissal was misconduct. The matter was the subject of a conciliation conference on 12 February 2010 however the matter was unable to be resolved at this point. Subsequently the matter proceeded to a Jurisdiction (Small Business Dismissal Code Complied with) and Arbitration hearing before a member of the Tribunal as currently constituted.

[3] Mr Fehring, of Counsel, represented the Applicant and Mr Gleeson, one of the owners of the Respondent, represented himself.

[4] The Applicant gave evidence. Mr Gleeson gave evidence as did Ms Anne Gleeson and Ms Catherine Cubitt for the Respondent.

Settlement of Jurisdictional Objection

[5] Mr Gleeson provided documentation regarding the rosters, wages and time sheets for his employees at both the Portland site of Pinky’s Pizzas and the Mount Gambier site to support his contention that he was covered by the Small Business Code because he employed less than 15 equivalent full-time employees at the time of the Applicant’s termination of employment. 1

[6] The Applicant’s representative did not contest the eligibility of the Respondent to be covered by the Small Business Code on the number of employees employed by the Employer. The major contention of the Applicant was that the Respondent had not complied with the Code in terminating the employment of Ms Maczkowiack.

[7] Section 388 of the Act sets out the Small Business Unfair Dismissal Code:

“Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[8] The Code states that it is fair to dismiss an employee without warning if “sufficiently serious to justify immediate dismissal”. It is argued in this matter that the incident which occurred involving the Applicant on 6 January 2010 was not so serious as to justify immediate dismissal. It was submitted that on this basis, and arising from the Respondent’s reasons for the termination of employment, that the only valid reason for termination open to the Respondent was the Applicant’s “conduct or capacity” to do her job. In such circumstances the Code required that the employee be warned verbally or preferably in writing, that unless there was an improvement there was a risk of dismissal.

[9] Mr Fehring submitted that the Applicant had not received any warnings regarding her performance or performance related issues during her time in employment and at no time was the Applicant told that her employment was at risk due to her “conduct or capacity”.

[10] It was further submitted that at the meeting associated with the events of 6 January 2010 and the Applicant’s participation in the event, that she was not given an opportunity to respond and not provided with reason/s why she was dismissed from her employment.

[11] Mr Fehring emphasized that the Respondent had not complied with the Small Business Dismissal Code and that the Tribunal should find in favour of the Applicant and order compensation. He stated that in determining a remedy the principles established in Sprigg 2 should be applied. He advised that Applicant had sought work since her employment was terminated and had not been successful in finding work.

[12] On termination the Applicant was paid her entitlements and the remainder of wages for her last week of work. She worked 17.30 hours in the final week but her final payment included wages for a 38 hour week.

The Applicant’s case

[13] Ms Maczkowiack was employed as a pizza maker by the Respondent in October 2007. Her initial employment was as a casual but she became a permanent member of staff and a shift supervisor. She was dismissed from her employment on 7 January 2010.

[14] She stated that at no time had she been “counselled, warned or told that my employment was at risk by Brian Gleeson or anyone else in authority.” 3 She denied that she had ever been warned about her behaviour or conduct. However the Applicant gave evidence about several incidents which had occurred at work involving arguments with other staff.

[15] In December 2009 a disagreement occurred between the Applicant and another employee, Ms Marley. The Applicant stated that she believed she was being verbally harassed by Mr Gleeson and two of his fellow workers, Ms Marley and Ms Martin, regarding her sexuality. 4

[16] The Applicant stated that on one occasion when discussion took place about the attractiveness of a male delivery driver and she did not join in, Ms Marley and Ms Martin, with Mr Gleeson joining in, were commenting and laughing at her sexuality. She stated she was very upset by this incident.

[17] It was also the Applicant’s evidence that on 30 December 2009 or thereabouts, Mr Gleeson had asked her to go to the office. There had been some problems between the Applicant and Ms Marley and the manner in which they related to each other at work. The Applicant stated that at the meeting Mr Gleeson told her that when he was away on leave in early January he did not want any scenes to occur. He also told her she would be in charge of the shop in his absence.

[18] On 6 January 2010 when the Applicant was working, Ms Martin, who was a driver, came into the shop. The Applicant stated that Ms Martin was angry with her as her hours had been changed. In the morning of 6 January the Applicant had asked a different employee to assist with deliveries because even though Ms Martin was rostered, the Applicant did not believe she was reliable and she wanted to ensure that for a large booking taken by the shop there were no delays or problems with the delivery.

[19] The Applicant stated that Ms Martin demanded that the Applicant make her a pizza. The Applicant stated it was not her job to make a pizza for her as she was being rude. The Applicant also stated “Why would you want a dyke to touch your pizza? You don’t know where my hands have been.” 5

[20] Ms Martin rang Mr Gleeson who rang the Applicant to ask what was occurring at the shop. The Applicant stated that she and Mr Gleeson had a ten minute conversation by telephone which ended with Mr Gleeson saying “He didn’t care what Crystal (Martin) had said and that I was overreacting and that it was my job to make her pizza.” 6

[21] The Applicant stated that the policy of the shop was that only the pizza makers which comprised Ms Marley, Mr Gleeson and herself could make pizzas for external customers but that staff members who are not pizza makers can make their own pizzas. The Applicant stated that after she had hung up she intended to make the pizza for Ms Martin but noticed she was making her own so went to the toilet.

[22] When she returned to the shop area she noticed that Ms Cubitt, another employee, was in attendance. The Applicant stated that Ms Cubitt told her that Mr Gleeson had rung her to ask her to go to the shop because he thought the Applicant had walked out.

[23] Ms Cubitt asked for the Applicant’s side of the story. She had also asked Ms Martin for her side of the story. Ms Cubitt’s evidence was that the Applicant said to her “that she’s (Ms Martin) making her own fucking pizza because I am a fucking lesbian and she doesn’t know where my hands have been.” 7 Ms Cubitt further stated that she asked Ms Martin to stop making the pizza but when the Applicant said she would not do it, Ms Martin finished it and left the store.

[24] The Applicant was due for a break at 4.00 p.m. but Ms Cubitt stated that she told the Applicant that Mr Gleeson had said she should go home at 4.00 p.m.. She stated this occurred because there was a lot of difficulty between the Applicant and Ms Marley who was to take over later in the afternoon and Mr Gleeson did not want the Applicant to be present at the takeover time despite Ms Cubitt having been there the two previous days to supervise the handover.

[25] The Applicant attested to a phone call from Ms Gleeson, the co-owner of the shop after she returned home on 6 January. Ms Gleeson sought that the Applicant attend work that night for a meeting but it was agreed that the Applicant would come into work earlier on 7 January for the meeting with Ms Gleeson.

[26] The Applicant met with Ms Gleeson on 7 January. Ms Cubitt was also in attendance as a witness. It is common ground between the witnesses that Ms Cubitt did not participate in the meeting.

[27] Ms Gleeson asked the Applicant what had occurred on 6 January and she outlined her view. Ms Gleeson then asked the Applicant to give an honest answer as to whether she thought there would be any ongoing arguments at the shop. The Applicant stated that there would be further arguments between her and Ms Marley and Ms Martin because nothing was being done about the situation by Mr Gleeson.

[28] Ms Gleeson adjourned the discussion to ring Mr Gleeson and on her return the Applicant was told that they had decided that she should finish up immediately. The Applicant asked if she could get her holiday pay and a reference and was told these would be provided for her later. The Applicant was paid her leave entitlements and three additional day’s wages for the last week of work because she had finished work on the Wednesday of the week.

[29] Mr Gleeson conducted the cross-examination. The Applicant denied that the rosters had been prepared by Mr Gleeson prior to him commencing leave and she stated she had drawn up the rosters for the two weeks he was on leave. She denied that Mr Gleeson had asked Ms Marley and her to leave their personal problems outside the shop. The Applicant agreed that she and Mr Gleeson had discussed her sexuality and that he had said he was happy with her sexuality. She denied that they discussed her sexuality after that one discussion.

[30] The Applicant agreed that Mr Gleeson had mentioned to her at times that she was much happier with her new partner and good at work. She denied that she had ever said to other staff members that being gay was great because you “get twice the pick of the crop” and she stated that Ms Marley had abused her when the discussion occurred about the handsome delivery person. 8

[31] The Applicant agreed that Mr Gleeson had called Ms Marley and herself into his office on 5 January before he commenced leave to tell them to act properly as employees when he was away. She also agreed that it was arranged that Ms Cubitt would attend the shop for the ten minutes at shift handover so there would not be arguments between Ms Marley and herself.

[32] She disagreed that Mr Gleeson had warned them at the meeting on 5 January that if the Ms Marley and her did not adhere to his warning about their behaviour they would be terminated.

[33] In relation to the events on 6 January 2010, the Applicant stated that it was common for drivers to make their own pizzas. She further stated that Ms Martin did ask her to make a pizza for her on that day. She stated that she decided to use a driver she considered to be more reliable than Ms Martin in the morning even though Ms Martin was the person rostered that day.

[34] Ms Martin rang Mr Gleeson after the Applicant refused to make her a pizza but the Applicant denied that she had refused to go to the phone at Mr Gleeson’s request to talk to him. The Applicant answered the phone when Mr Gleeson rang in again and agreed that Mr Gleeson told her to make the pizza for Ms Martin and that she refused. She denied that he stated that if she did not make the pizza her job was finished or that if she refused to make the pizza she was effectively not wanting to do her job.

The Respondent’s case

[35] Brian Gleeson’s evidence, both written 9 and oral, contradicted the Applicant’s evidence. He attested to ongoing problems at the workplace associated with the Applicant’s behaviour. He referred to a number of incidents in which the Applicant’s behaviour had caused problems at work.

[36] He referred to an outburst by the Applicant involving Glen Cubitt at some time prior to the end of 2009. The Applicant was not examined on this incident but neither was the incident denied and I have no reason to believe that it did not occur.

[37] Mr Gleeson stated that in December 2009 Ms Maczkowiack and Ms Marley who had been good friends had a “falling out”. 10 He did not know why but it caused problems at work and he spoke to both of them and told them to leave their personal problems at home and work harmoniously. He stated that the situation escalated to the point where both employees told him they would go to solicitors – one seeking advice regarding bullying, the other one alleging sexual harassment.

[38] He stated that the Applicant argued sexual harassment on the basis that staff members were talking about her sexuality behind her back and agreed that it was a topic of conversation because the Applicant was openly discussing the issue. He gave two examples of the Applicant making sexually explicit and unwelcome remarks to another staff member.

[39] He further stated that at the end of December 2009 he physically pulled the Applicant away from Ms Marley due to the level of abuse the Applicant was giving to the other employee. He took her to the office and attempted to calm her. He stated that when she lost control the Applicant was extremely abusive. At this meeting he stated the Applicant demanded that she only work with particular people and that the rosters be changed so that she did not have to work with or see particular employees.

[40] Mr Gleeson attested to the situation between Ms Marley and Ms Maczkowiack being so difficult that Ms Marley was attending for work with another adult and Ms Cubitt had to be present at the five minute shift overlap when both were present. Mr Gleeson was adamant that he told the Applicant prior to his departure on leave that if she “made a scene” at work in his absence she “would not have a job”. 11

[41] Mr Gleeson confirmed that Ms Martin rang him on 6 January to complain about the Applicant’s decision to not give her the rostered deliveries and her behaviour when she asked her to make a pizza. He stated that the Applicant refused to come to the phone but that when he spoke to her on the other phone and told her to make the pizza she hung up on him.

[42] The Respondent then rang Ms Cubitt to go to the shop because he believed that the Applicant may have walked out and he rang Ms Anne Gleeson, a co-owner of the shop, to ask her to speak to the Applicant. His evidence was that he spoke to Ms Gleeson by phone again that evening and on 7 January 2010 after the meeting with the Applicant and agreed that the Applicant’s employment should be terminated.

[43] Anne Gleeson’s evidence primarily focussed on the meeting which she had with the Applicant on 7 January 2010. She confirmed that she asked Ms Cubitt to attend as an independent witness. Ms Gleeson stated she commenced the meeting by asking the Applicant what had occurred on 6 January. The Applicant’s response was that Ms Martin came into the shop and demanded that a pizza be made for her and when she refused Ms Martin abused her. She stated to Ms Gleeson that the other employees “had it in for her because of her sexuality”. 12 Ms Gleeson stated that not to be the case but rather the Applicant’s presumption and an over-reaction.

[44] She asked the Applicant whether she could trust her to continue working in the shop without “blowing up again” 13 and that Applicant could not give that guarantee. Some discussion occurred whereby the Applicant suggested that Ms Cubitt could give her some sort of signal that would mean she should calm down. Ms Gleeson rejected this option on the basis that it was the Applicant’s responsibility to control her behaviour not any other person.

[45] Ms Gleeson rang Mr Gleeson and they discussed what they should do. They decided that on the basis of the Applicant not providing an undertaking regarding her future behaviour that her employment should be terminated immediately. Ms Gleeson advised the Applicant her employment was terminated. She stated that the Applicant asked for a second chance but Ms Gleeson told her she had had her second chance.

[46] Catherine Cubitt, an employee of the Respondent also gave evidence. Ms Cubitt had worked with the Applicant for most of the Applicant’s employment and stated her behaviour was unpredictable and she found her to be difficult to work with. She confirmed that she was asked to be present in January at the shift handover between the Applicant and Ms Marley to ensure that problems did not develop between them.

[47] She confirmed she was rung by Mr Gleeson on 6 January 2010 to go to the shop because he had been rung by Ms Martin about an argument between Ms Martin and the Applicant. Mr Gleeson did not know whether the Applicant had left the shop and asked Ms Cubitt to check. Both Ms Martin and the Applicant told Ms Cubitt their version of the incident which had occurred on that day.

[48] Ms Cubitt confirmed that the policy regarding the making of pizzas was that the pizza makers usually make the pizzas and she was surprised to see Ms Martin making a pizza when she went to the shop. She confirmed her attendance at the meeting with Ms Gleeson and the Applicant on 7 January. Her evidence regarding the undertakings which Ms Gleeson required about the Applicant’s future behaviour was consistent with Ms Gleeson’s evidence. Ms Cubitt stated that the Applicant said she would fight any time she felt she was being offended and she would stand up for herself even if the shop was full of customers and junior staff were present.

[49] It is worth noting Ms Cubitt’s evidence regarding the work of the Applicant. She stated, in part: “… I would like to say that Kirby has a wonderful work ethic that one just doesn’t normally see in young adults these days. Unfortunately she was in a job that entailed her working with and supervising others and at this point in time she is unable to do this. I do believe though with guidance and maturity that eventually she will be able to do this and I wish her well in the future.” 14

Conclusion

[50] The Tribunal must in the first instance determine whether or not the termination of the Applicant’s employment was consistent with the Small Business Unfair Dismissal Code. If it is not, then the Tribunal must have regard to a number of factors which are set down in s.652 to determine whether the termination was harsh, unjust or unreasonable.

[51] The Small Business Dismissal Code is applicable to this case because the Respondent fulfils the criteria as a small business on the basis of the number of persons employed by the business. 15 It remains therefore to be determined whether Ms Maczkowiack’s dismissal was consistent with the Small Business Dismissal Code.

[52] In relation to the communication and behavioural problems between the Applicant and Ms Marley I accept the evidence from the majority of witnesses who were either directly involved or observed an occasion/s when they had been spoken to by Mr Gleeson regarding their behaviour. I accept Mr Gleeson’s evidence regarding the December 2009 meeting that he told both employees they should leave their problems outside the shop. There are different versions of precisely what was said but I prefer this version as the logical version. I also accept the evidence, uncontradicted by the Applicant, that Mr Gleeson had to physically pull the Applicant away from Ms Marley during an argument in late December 2009.

[53] In my view, in the context that the employer has called on employees to attend a meeting and then explains that their behaviour is unacceptable and it must be changed, it is reasonable to accept that the employees have been counselled. It also follows in my view that if the behaviour complained of is unacceptable and the employees are told, as I accept they were, that there behaviour must change, it is not unreasonable to believe that a warning has been issued regarding future behaviour.

[54] The argument that the Applicant was not warned about her behaviour is inconsistent with her own evidence and all the witnesses in this case. It is denied by the Applicant that she believed her employment to be at risk. It was argued that it was unlikely that the Applicant had been warned about her behaviour, performance or attitude at work because when Mr Gleeson went on holidays he left the Applicant in charge.

[55] Mr Gleeson did indeed leave the Applicant in charge when he took his holidays and the evidence shows that there had been counselling’s or warnings to the Applicant about her behaviour and he stated his expectations of her during his period of leave.

[56] There is no doubt that the Small Business Code indicates a preference for warnings that employment is at risk, to be put in writing. In this matter a warning was not put in writing but given that there had been several verbal warnings regarding unacceptable behaviour it defies common sense and the obvious intelligence of the Applicant to deny that as a result of her behaviour that her employment was not at risk.

[57] In retrospect, and I’m sure Mr Gleeson will agree, it would have been preferable to provide a written warning to both the Applicant and at least one if not the other two employees who were involved in the problematic relationships in the workplace, that a continuation of the existing behaviours put their ongoing employment at risk. This was all the more so given that the Applicant was threatening legal action against the employer alleging sexual harassment occurring in the workplace and Ms Marley were threatening legal action regarding bullying in the workplace. These threats arose directly from the deterioration of the Maczkowiack and Marley relationship and needed to be dealt with immediately.

[58] In part Mr Gleeson recognised the poor relationship as he warned the employees involved about their behaviour and varied the working arrangements at the shop to accommodate the friction between Ms Maczkowiack and Ms Marley by ensuring that Ms Cubitt was present when both employees were present for a limited time at shift changeover. This change placed additional pressure on the employer and Ms Cubitt.

[59] I do not underestimate the difficulties faced by this employer in a small business where he required employees with experience as pizza makers. I accept the evidence of Ms Cubitt that the relationships between most of the employees were generally good. Neither the ability nor work ethic of the full-time employees which includes the Applicant has been questioned. It defies logic and common sense given the evidence regarding a number of incidents including verbal exchanges between certain employees and follow-up meetings with Mr Gleeson, that the Applicant, or other employees involved, believed their behaviour was acceptable in the workplace. It was not.

[60] Ms Martin understood that her participation in the incident between the Applicant and herself on 6 January 2010 was not acceptable. She had previously been counselled by Mr Gleeson and I accept Mr Gleeson’s evidence that she knew she had been in the wrong on 6 January and she accepted the termination of her employment on 7 January 2010 and in fact stated that she knew her termination of employment was coming as a result of her actions.

[61] A far more preferable manner of handling the situation regarding the driver for 6 January would have been for the Applicant to ring Ms Martin first and, if there was any problem regarding her availability, to explain to Ms Martin that a different driver would be used. None of the evidence shows that Ms Martin was the instigator and sole cause of the events on 6 January and I find that by her own actions on that date alone the Applicant made a major contribution to the termination of her employment.

[62] Much of this case was focussed on the events at the shop on 6 January 2010. Considerable cross-examination occurred on the policy of the employer regarding who made pizzas and who did not. The evidence generally attests to the position that the pizza maker usually made the pizzas and always made them for a customer. Sometimes the other employees who were not pizza makers made their own pizzas, if the pizza maker agreed. The policy is only one element of what occurred on 6 January 2010.

[63] The Applicant was required to make the pizza for Ms Martin on 6 January 2010 and despite Ms Martin’s rudeness because the Applicant had not used her as a driver in the morning, the Applicant’s intemperate response and failure to carry out what was required of her by the Applicant was totally unacceptable. I do not make a finding here whether there were customers in the shop at the time of the argument between the Applicant and Ms Martin. If there were customers and they overhead the exchanges I would look favourably on the argument that the incident gave rise to instant dismissal.

[64] I accept the evidence of Mr Gleeson, uncontradicted by the Applicant’s own evidence, that in the phone call he made to the Applicant on 6 January 2010, he directed her to make the pizza for Ms Martin. It is probable that the words he used were “either make the pizza or you don’t want your job.” Ms Maczkowiack hung up on her employer and did not make the pizza.

[65] Mr Gleeson was so concerned regarding what had occurred he rang Ms Cubitt and asked her to go to the pizza shop to assess the situation. On the basis of the Applicant’s conversation he believed that she may have left the shop. Ms Cubitt’s evidence was given in a direct and straight forward manner and she did not appear to be emotionally involved in the troublesome relationships between some of the employees. Her evidence was logical and she was firm in her views regarding those parts of the incidents involving Ms Maczkowiack. I believe her evidence to be accurate and her account of what occurred in the incidents she observed to be unbiased.

[66] Ms Cubitt arrived at the shop and was surprised to find Ms Martin making a pizza. This gives weight in my view to the explanation that employees other than pizza makers did not usually make their own pizzas.

[67] On the events of 6 January 2010, I prefer Mr Gleeson’s evidence as outlined in his witness statement 16 to that of the Applicant. I find that she refused to speak to Mr Gleeson when requested to do so, that she refused to make the pizza for Ms Martin when instructed to do so by her employer and that by doing so she refused a reasonable request. I believe that Mr Gleeson did provide the Applicant with an ultimatum regarding her job and that she was warned if she did not make the pizza her job was finished.

[68] I find further that the Applicant prematurely ended the phone call between Mr Gleeson and herself and that her actions after the phone call appear contrary to her “intention” to make the pizza for Ms Martin particularly when she had refused that direction from Mr Gleeson.

[69] I find that the Applicant by her own actions ended the employment relationship with her employer. It is simply not possible for businesses and particularly small businesses to operate in an atmosphere which existed at the shop in late 2009 and early 2010, to which the Applicant’s behaviour was a major contributing factor.

[70] On the basis of the written and oral evidence before the Tribunal, the Applicant’s allegations that she was harassed at work on the basis of her sexuality cannot be substantiated. I accept the evidence that she openly spoke with Mr Gleeson about her sexuality. The Applicant agreed that they had spoken about her sexuality and that Mr Gleeson had expressed views on homosexuality and referred to his own family. She also agreed that Mr Gleeson had told her that she had a much improved attitude and nature since she had been with her new partner. This does not accord with the Applicant’s evidence that there had been one discussion and all the other comments amounted to harassment.

[71] I also find that the Applicant made comments to the other employees about her sexual preferences and that she initiated the argument with Ms Martin on 6 January 2010 by crudely referring to her sexuality and just as crudely reported to Ms Cubitt what she had stated to Ms Martin.

[72] In the context of what had been occurring at the shop in the past six weeks, and the absence of Mr Gleeson on leave for the first two weeks of January, it is not surprising that at the meeting on 7 January 2010, Ms Gleeson sought an undertaking from the Applicant that there would not be further trouble between her and Ms Martin and Ms Marley. The Applicant’s response that there would be more arguments on the basis that she believed the other two employees would bate her, provided no comfort to the employer that she could continue in employment.

[73] The solution that Ms Cubitt be in attendance every time that two or three of these employees were in attendance together and that she provide a signal to Ms Maczkowiack if she started to get angry could not be justified. The Applicant had worked at the shop for several years and knew what standards of behaviour were required of her. She was not prepared to give any undertakings regarding her ongoing behaviour, had failed to improve her behaviour after the employer had warned her that her behaviour was unacceptable and had defied a reasonable request made by the employer on 6 January 2010. In such circumstances the employer was justified in dismissing the Applicant.

[74] The Applicant has been paid an additional three days for work she did not perform. I do not intend to award compensation as I find the dismissal of employment was not contrary to the Small Business Dismissal Code.

COMMISSIONER

Appearances:

I. Fehring, of Counsel, for the Applicant.

B. Gleeson for the Respondent.

Hearing details:

2010.

Warrnambool:

April 27, 28.

 1   Exhibit R1.

 2   Sprigg v Paul's Licensed Festival Supermarket (1998) 88 IR 21.

 3   Exhibit A1.

 4   Transcript, 27 April 2010 at PN 153.

 5   Ibid at PN 174 – 180.

 6   Ibid at PN 182.

 7   Exhibit R3.

 8   Transcript, 27 April 2010 at PN 276 – 291.

 9   Exhibit R4.

 10   Ibid.

 11   Ibid.

 12   Exhibit R2.

 13   Ibid.

 14   Exhibit R3.

 15   Exhibit R1.

 16   Exhibit R4.

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