Kym Kuskey v Bolton Clarke
[2020] FWC 5901
•4 NOVEMBER 2020
| [2020] FWC 5901 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kym Kuskey
v
Bolton Clarke
(U2019/9865)
COMMISSIONER BOOTH | BRISBANE, 4 NOVEMBER 2020 |
Application for an unfair dismissal remedy.
INTRODUCTION
[1] On 3 September 2019, Ms Kym Kuskey (Ms Kuskey/the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Bolton Clarke (Bolton Clarke/the Respondent). She seeks 14 weeks ordinary pay by way of compensation but does not seek reinstatement.
[2] Ms Kuskey was employed as a Diversional Therapist by the Respondent at RSL Care in Bundaberg and was employed in that capacity from 2 June 2008 until her dismissal on 22 August 2019.
[3] Bolton Clarke is a provider of independent living services though at-home care, retirement living and residential aged care. RSL Care in Bundaberg provides residential aged care facilities in Bundaberg.
[4] It is the Respondent’s case that the Applicant’s employment was terminated as a result of her continued failure to comply with reasonable and lawful directions given to her about use of her personal mobile phone. Further, the Respondent says the Applicant understood she was not permitted to use a personal mobile phone for the purposes of taking photos of residents.
[5] The Applicant’s conduct was said to be a breach of the Respondent’s Code of Conduct and its obligations to maintain resident privacy under the Privacy Act 1988 and the Aged Care Act 2007. The Applicant was warned that failure to comply may result in termination.
[6] It is the Applicant’s case that she received and began using a work camera in late May or early June 2019, having been warned not to use her personal mobile phone for certain purposes but to use the work camera instead. Although she could use the camera to take photographs of residents, she, like others in the workplace, could not upload the photographs onto the computer and use them for the newsletter.
[7] As a result of this and having understood she had been told not to use her personal phone for the purposes of contacting resident’s families, the Applicant says she sought permission specifically to use her personal mobile phone on two occasions from, Ms Adele Wilkinson, Residential Manager (RM), but only for the purposes of taking photographs of residents as part of her work for publication in the newsletter. She submits that is the only way that photographs could be taken and used, given the uploading problems. The Applicant seeks to establish that other employees also used their phones to take photos of residents before, and potentially after, her dismissal.
[8] Further, she submits that she asked for but did not receive training in using the camera.
[9] Following issuing of Directions and the filing of evidence, the matter was heard on over two days by video on 6 July 2020 and 7 July 2020 by Microsoft Teams. The Applicant gave evidence on her own behalf and the following witnesses also gave evidence on her behalf:
• Ms Angela Faith Sheridan – Hotel Services Team Leader
• Ms Karen Frances Gerrey – Administration Officer
• Ms Olwyn Anne Zimmerlie – Contract Hairdresser
• Ms Vicki Leigh McDonnell – Administration Officer
• Ms Elizabeth Gwen Allison – Registered Nurse
• Ms Julie Ann Last – Personal Care Worker
• Mr William Joseph Reid – Personal Care Worker.
[10] Ms Jodie Foster, Principal Employee Relations Advisor, appeared on behalf of the Respondent. The following witnesses gave evidence on behalf of the Respondent:
• Ms Adele Gaye Wilkinson – Residential Manager
• Ms Michelle Tindill – Senior Administration Officer.
[11] While not all the submissions and evidence are referred to in this decision, all have been considered. This includes consideration of the written transcript of the hearing. While this transcript has more than the usual number of missing words (presumably as a result of conducting the video hearing via Microsoft Teams,) I consider that the context allows a reasonable assumption about the missing words. Where an assumption has been made about a missing word, it has been footnoted.
BACKGROUND
[12] The facts of the matter leading up to the dismissal are as follows.
Warning issues in March 2019
[13] On 8 March 2019, a meeting took place with the Applicant and Residential Manager, Ms Adele Wilkinson. During this meeting, a number of allegations were put to Ms Kuskey, including that she had been using her personal mobile phone to send photos and text messages to residents’ family members.
[14] A letter dated 18 March 2019 was issued to Ms Kuskey by the Respondent, to which she was provided an opportunity to provide further information in relation to the two allegations. Ms Kuskey provided further information as requested.
[15] A two-page letter dated 27 March 2019 and titled ‘Warning’ was issued to Ms Kuskey. The letter was signed by Ms Wilkinson. Relevantly, as to allegation 2 about using her phone, the letter stated:
“You confirmed that you have been using your mobile phone to communicate with relatives of residents which includes taking and sending of pictures. You acknowledge that I have previously coached you about this matter and directed you not to use your mobile phone when at work.”
[16] The letter concluded there had been a breach of privacy and confidentiality and a failure to follow reasonable management action in relation to not using the Applicant’s own personal mobile phone at work.
[17] The letter also set out a requirement that the Applicant commence an individual coaching plan that included completing Code of Conduct modules 1 and 2 and fortnightly meetings with the Residential Manager or Clinical Manager. The duration of these meetings, that commenced on 10 April 2019, were 15 minutes and focused on “performance and conduct, any concerns that have arisen during the past two weeks and anything to improve upon moving forward”.
[18] The letter further stated the following:
“Should you not be clear on any of the contents of this letter and what is expected or required of you in your role, you should approach me to obtain clarification on the above requirements”.
Show Cause Letter
[19] On 12 August 2019, a further letter was issued to the Applicant titled “Breach of Confidentiality and Privacy” and signed by Ms Deb Ward, People and Culture Business Partner. The letter notes that the Applicant’s employment with the Respondent has been subject to ongoing review and that a formal warning was issued to the Applicant on 27March 2020. The following three allegations of use of mobile phone were put to the Applicant and the letter states:
“1. On Friday 19th July 2019 other staff witnessed you using your personal phone to take photos of resident [name redacted] and her daughter in law in the activities of The Glen, Cottage 7.
2. In mid-June 2019 you showed other staff photos of resident [name redacted] on your personal phone. This photo was then published in the residents’ July newsletter.
3. On 24th July 2019 other staff witnessed you using your personal phone to take photos of resident [name redacted] while conducting a resident activity.
This inappropriate behaviour follows the above-mentioned warning, being provided with a Bolton Clarke camera and numerous conversations with management giving you reasonable management instructions to cease the use of your personal phone at work. These reminders include, but are not limited to 14th December 2018, 8th, 18th and 27th March 2019 and 10th April 2019.”
[20] The Applicant was invited to provide a written response in relation to the above allegations by 3:00 pm on Friday, 16 August 2019. The Applicant was also required to access special leave pending an investigation into the allegations.
Ms Kuskey responds to allegations
[21] On 16 August 2019, the Applicant provided a written response to the above allegations which began by noting that the Applicant was not aware or nor told not to use her personal mobile phone for newsletters even after telling Ms Wilkinson she could not work the camera.
Termination – 22 August 2019
[22] In a letter dated 22 August 2019, the Applicant was dismissed from her employment. After setting out the allegations and noting the counselling provided and the applicant’s response, the letter went on to state:
“It is noted that your written responses do not deny of the use of your personal phone. There were however statements confirming further use of your personal phone for work related purposes. Additionally, your response implies other staff use their personal phone to take resident photos. We will investigate this accordingly.
We have concluded that you have not followed reasonable management instructions to cease using your mobile phone at work, specifically for the purpose of taking photos of residents. Taking resident photos on your personal device is a breach of the resident’s right to privacy and privacy legislation. You have not provided any evidence of consent by residents to have their photos taken. You have been warned about this practice and continued to do so on a regular basis as evidenced by your Bolton Clarke e-mail records. Your mitigation that you were unable to use the Bolton Clarke owned devices was considered and it is noted that you did not make anybody aware of the difficulties that you were experiencing and give Bolton Clarke an opportunity to assist you.”
LEGISLATION
[23] Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[24] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
[25] I conclude that the precondition requirements under the Act are satisfied. 1 The application was made within the required period; the Applicant was protected from unfair dismissal; the termination was not as a result of a genuine redundancy; and the Respondent is not a small business and the Small Business Fair Dismissal Code does not apply.
[26] I am therefore required to consider the merits of the application.
[27] Section 387 of the FW 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.
CONSIDERATION
[28] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 2 I set out my consideration of each below.
s.387(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);
[29] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 3 and should not be “capricious, fanciful, spiteful or prejudiced.”4
[30] The Respondent submitted that there was a valid reason related to the Applicant’s conduct. For there to be a valid reason related to the Applicant’s conduct, I must find that the conduct occurred and justified termination.5 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 6
[31] It is not the Commission’s role to “stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court.”7 However, I “must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.”8
[32] In the case of Allied Express Transport v Anderson, 9 the Full Court of the Federal Court found when considering the entire factual matrix, the court looked not only at the employee’s conduct but considered the role of the employer where the disobedience that lead to the dismissal, concluding that the disobedience was largely the making of the employer. This, along with other circumstances was considered as part of the as part of the matrix the circumstances and concluded that on the facts of that matter and upheld a finding that there was no valid reason for the dismissal. The court wrote as follows:
“The entire relevant factual matrix must be considered in determining whether an employee’s termination is for a valid reason. It has been held that the expression ‘‘valid reason’’ is used in the sense of a reason which is sound, defensible, or well-founded: see Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373 per Northrop J. See also Murdoch University v Mainsbridge (unreported, Industrial Relations Court of Australia, Full Court, 12 June 1998). We share the view of his Honour that the so-called disobedience was ‘‘fleeting and understandable’’ and largely the making of Allied itself by the manner in which it effected Ms Anderson’s removal to Wynyard. Also, in the light of the finding of his Honour as to the content of the telephone conversation between Ms McDowell and Ms Anderson on 22 August 1996 we share his Honour’s view that, if Ms Anderson was not entirely frank with Ms McDowell regarding the circumstances of her return to the courier dock, any lack of frankness was minimal, and being based on her intention not to cause trouble for Ms Rennard, was ‘‘understandable’’ in the circumstances.”
[33] The Respondent has submitted that there was a valid reason for the dismissal related to the Applicant’s conduct in failing to abide by a lawful and reasonable direction of the Respondent. It is necessary to consider whether the direction was lawful and reasonable and whether the Applicant’s conduct in failing to abide by the direction gave rise to a valid reason for her dismissal.
[34] A Full Bench of the Australian Industrial Relations Commission found that “[a] failure to comply with a direction to do or refrain from doing something in compliance with an employer’s policy will not provide a valid reason for termination of employment where:
(a) the policy, or a direction to comply with the policy, is illegal;
(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or
(c) the policy, or a direction to comply with the policy, is unreasonable.”10
[35] In order to establish if a direction was reasonable, it is not necessary for the Respondent to demonstrate that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties. 11 Rather, what is required is a consideration of whether the direction was reasonable, having regard to “[t]he nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument…[which] govern[s] the relationship.” 12
[36] “In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee’s conduct.” 13
[37] It has been held that inconsistent treatment of previous similar conduct by other employees in the workplace is an issue that can be relevant. 14
Submissions on valid reason – Applicant
[38] The Applicant submitted that there was no valid reason for the dismissal related to the Applicant’s capacity or conduct because she had permission or approval to use her personal mobile phone for the limited purpose of taking photos for the newsletter. After her warning in March 2019, she did not use her personal mobile phone for any other purpose as directed by her employer. That is, she did not text families of residents nor did she send any photos of residents to family members.
[39] The Applicant stated that families of residents receive a newsletter that includes images of residents engaging in different activities. The newsletter kept families up to date on what the residents were doing. The Applicant stated that she was responsible for putting the newsletter together, taking photos of the residents with her mobile phone and had been doing so for years.
[40] The Applicant stated that on 14 December 2018, the Residential Manager met with her to discuss a text message sent by the Applicant to the family of one particular resident. The Applicant claims that the Residential Manager made a point of telling her to stay away from the family as they were going to the news about the Respondent. 15 The Applicant stated that this conversation was only about texting that particular family, and that there was no discussion about using her personal phone in the workplace.
8 March 2019 meeting and formal warning follows
[41] On 8 March 2019, a meeting took place with the Residential Manager. During this meeting, on the issue of personal mobile phone use, it was put to the Applicant that she had been using her mobile to send photos to family members of residents. She denied the Residential Manager’s statement that she had previously been directed not to send photos and stated that the discussion on the 14 December 2018 was only about the one family. Nonetheless, the Applicant stated during this meeting that it was now clear to her that she was not to send photos to families, and that she would not do it again. 16
[42] The Applicant confirms she received the warning letter from the Respondent dated 18 March 2019.
[43] The Applicant confirms that a camera was provided to her to take photos of residents for the newsletter. Although not entirely clear, the camera was possibly provided in May 2019.
[44] The Applicant submits that she used the camera successfully for taking photos, but she had no success uploading the photos to her computer so they could be used in the newsletter.
Applicant submits she subsequently seeks advice from RM following her inability to upload photos and that she obtains approval to use mobile for newsletter purposes
[45] The Applicant’s evidence on seeking and gaining approval to use her mobile phone is as follows:
• the Applicant told the RM that she could not upload the photos from the camera;
• the Applicant advised the RM that Ms Jeanette Phillips (another Diversionary Therapist) had emailed her to say she could not do upload photos either, and that she has contacted IS 17 twice and they could not fix it either;
• the Applicant could not remember if she told the RM she was going to use her personal mobile phone, or if she asked for the RM’s permission from her to use the mobile to take photos for the newsletter until the uploading problem was fixed. Either way, she submits the RM responded with “Yes, good” 18.
[46] The Applicant asserts that she understood that she had permission to use her personal mobile phone for the limited purpose of the newsletter and then only until she herself, Ms Phillips or IS could fix the problem. Further, she says that this is the only reason she continued to use the mobile for that purpose.
[47] In particular, she submits that she never again sent photos or text messages to residents’ families after the warning letter was given to her.
[48] Under cross-examination Ms Kuskey repeated her understanding as follows:
“I have stated numerous times I have never received a work (indistinct 19) in April. I believe now after going through all this it must have been probably late May, the end of May. After using the work (indistinct20) able to transferring photos and then went and seen Adele to get permission to use my, my mobile phone, for this purpose only as the newsletter was very important and Adele gave me permission.”21
[49] She says she was never trained or offered any knowledge on how to use the camera. The Applicant submitted that she was not sent the email from IS dated 3 March 2019 nor did she receive any offers of training during the entire three months of the performance management.
[50] Under cross-examination Ms Kuskey said:
“I received no training at all in regards to the work camera. I received the work camera (indistinct) with AW sliding across the desk and nothing else. The camera’s (indistinct) was in the box which that comes with - you go to the shop, you can buy a camera and you’ll have the box with how to use it. No (indistinct) on how to work the camera with the work computer. IT could never. I’ve rung them repeatedly and they could never answer it for me.
Adele Wilkinson and Michelle Tindall state that the cameras didn’t work. They worked fine, you just couldn’t transfer the photos.” 22
[51] Throughout the hearing, in submissions both oral and written and under cross-examination, the Applicant maintained that she had approval to use her personal mobile phone for the limited purpose of the newsletter.
[52] Ms Kuskey submits that Ms Vicki McDonnell, who acted as her support person, recalls the Applicant telling her about this conversation.
[53] The Applicant had the following exchange with Ms McDonnell under examination in chief: 23
Ms Kuskey: | Do you recall that a witness and me using a work camera? |
Ms McDonnell: | No, you did talk to me about a work camera something you were given one and you couldn’t get it to work and you spoke to Adele about it. Did I see you with the camera? No. (emphasis added) |
[54] That is, the witness recalled a conversation with Ms Kuskey that she had raised with Ms Wilkinson that she couldn’t get the camera to work and that Ms Kuskey related that she spoke to Ms Wilkinson in those terms.
[55] The Applicant submitted that many other employees use their personal mobile phones. The Applicant submits that both Ms Michelle Tindall and Ms Jeanette Phillips continued to take photographs for the newsletter in the period March-April 2019.
Applicant submits inconsistent treatment of another employee who used her personal mobile phone to take photographs of residents
[56] Evidence was also given by another current employee, Ms Angela Sheridan, a hotel services team leader.
[57] During cross-examination, Ms Foster began by explaining the company’s position on use of personal mobile phones, noting there is no issue with employees using the personal mobile phones to text each other but that the issue is taking photos of residents and appropriate storing of those photos, noting a breach of the Aged Care Act 1997.
[58] Ms Foster, after clarifying Ms Sheridan’s role as the hotel services team leader, put to Ms Sheridan during the hearing what she would normally be taking photos of with her personal mobile phone. Their exchange is as follows: 24
Ms Foster: | So if you’re going to be taking a photo, what is it you would normally be taking a photo of? |
Ms Sheridan: | Toilets, floors, just because we have a lot of faeces left on the floor that they walk through to their rooms. Over-filled rubbish bins, papers in rubbish bins. |
Ms Foster: | Basically you’re taking photos of the state of the building? |
Ms Sheridan: | Yes. |
Ms Foster: | I understand that you would have been provided with a work camera for that? |
Ms Sheridan: | No. |
Ms Foster: | When - sorry, pardon me. So when would you take a photo of a resident? |
Ms Sheridan: | When would I take a photo of a resident? When I believe that they’re not getting the care or there’s something out of place, or if they have been injured. |
Ms Foster: | Has anybody spoken to you about safe handling of those photos? |
Ms Sheridan: | No. No, at all |
Ms Foster: | Until Beth Allison spoken to you about it in May 2020? |
Ms Sheridan: | That’s right, and she just said to download it to her and delete it. |
Ms Foster: | Did she - - -?- |
Ms Sheridan: | She didn’t tell me where to put it or what to do with it, yes. |
Ms Foster: | Did she explain to you why? |
Ms Sheridan: | No, no, that was the end of the conversation. |
Submissions on valid reason – Respondent
Respondent submits valid reason for dismissal is continued failure to comply with reasonable and lawful directions
[59] The Respondent submits that there was a valid reason for the dismissal related to the Applicant’s capacity or conduct because of the Applicant’s continued failure to comply with reasonable and lawful directions about use of her personal mobile phone.
[60] The direction given to the Applicant to cease using her personal mobile phone the taking of photos of residents was said by the Respondent to be lawful and reasonable.
[61] Further, the Applicant’s conduct was said to constitute a breach of the Code of Conduct and obligations to maintain resident privacy under the Privacy Act 1988 and the Aged Care Act 1997. The Applicant was aware of, and understood, directions given to her and she was warned that failure to follow directions given to her may result in termination of employment.
The Respondent submits the Applicant has not established that she had permission to use her personal mobile phone for the purpose of taking photographs of residents for the facilities newsletter.
[62] The Respondent submits the Applicant did not establish her assertion that she had permission to use her personal mobile phone for the purposes of taking photos of residents for the newsletter, despite numerous questions posed to Ms Wilkinson to this end. The Respondent maintains its position that no permission existed.
[63] In examination in chief, Ms Wilkinson clarified the policy on use of personal mobile phones: 25
Ms Foster: | My apologies. Does Bolton Clarke draw a distinction between different types of mobile phone use? |
Ms Wilkinson: | Certain employees of Bolton Clarke were allocated a work mobile phone. Personal mobile phones were not to be used at work, unless there were circumstances where the employee needed to be contactable, and then they would ask permission to carry their personal mobile phone on them. |
Ms Foster: | What was it about Ms Kuskey’s mobile phone use that was the issue? |
Ms Wilkinson: | The issue was her personal mobile phone was being used to capture images of residents. I have no control over how - I had no knowledge of how her data was stored on the phone, what kind of protection, if any, there was on her phone, and that was information which we were required by law, and also by the charter of rights, to maintain a resident’s privacy. I saw the potential for a breach of that. |
Ms Foster: | Was that explained to Ms Kuskey? |
Ms Wilkinson: | Yes. |
Ms Foster: | Ms Kuskey was issued with a work camera - - -? |
Ms Wilkinson: | Yes. |
Ms Foster: | - - - between April and June. Do you recall any issues being brought to your attention about that work camera? |
Ms Wilkinson: | No. |
Ms Foster: | Were there any issues with work cameras in 2019?- |
Ms Wilkinson: | Not that I am aware of. |
Ms Foster: | What training was given to staff about work cameras? |
Ms Wilkinson: | It’s pretty self explanatory. They have instructions in the packaging, an SD card, an SD card reader - it’s pretty straightforward technology. |
Ms Foster: | Were any issues ever raised with you about the work cameras? |
Ms Wilkinson: | Never. |
Ms Foster: | Were employees reminded or told in 2019 about personal mobile phones and their usage? |
Ms Wilkinson: | Yes. Well, it was certainly - data protection was in our online training sessions, and as it came up individually - but it was never - I’d never had any issues much. It would be addressed personally with each staff member if there was one. |
[64] The following exchanges are from the Applicant’s cross examination of Ms Wilkinson:
Ms Kuskey: | That was after I’d already asked you if it was okay to use my personal phone for photos for the newsletter? |
Ms Wilkinson: | No, you never asked me that question. 26 |
(emphasis added) | |
Ms Kuskey: | When I came to you and told you straight, I said Jeanette Phillips again still having trouble with the cameras, transferring the photos; we can’t upload them from the camera. I said she’s emailed IT, they can’t fix it, and I said so until either Jeanette Phillips, IT support or myself can fix this problem uploading photos, can we still use our phones for the purpose of the photos for the newsletter only? |
Ms Wilkinson: | No I don’t recall the conversation all. 27 |
(emphasis added) | |
Ms Kuskey: | Well I’ve had - (indistinct) did occur, when I said that photo to – on – Christmas. I also recall apologising to you after amending a photo, but text to Julie Myers, and stating I would not text her some photos on my phone again, which I didn’t, then leads me to state about the newsletters that only - or JP and myself can do the photos. You said that the only time the something to that effect? |
Ms Wilkinson: | No I didn’t. I would not have - I don’t recall we ever had that conversation, and I can’t imagine why I would have ever agreed for anybody to use their personal mobile phone for work purposes. 28 |
(emphasis added) |
[65] The Respondent’s position is that the statements provided by the Applicant do not address the key issue of the matter, that the Applicant knowingly and wilfully breached the privacy of residents and continued to do so after being given a reasonable and lawful direction to cease the behaviour.
[66] In advancing its position, the Respondent tendered emails that describe situations in which the Applicant used her personal mobile phone in the workplace. On 19 July 2019 at 4:37 pm, Mr Beth Allison, a Registered Nurse, sent the following email:
“This afternoon Shandell and I witnessed Kym Kuskey take photos of [name redacted] and her daughter-in-law, using her (Kym’s) personal mobile. The photos were taken in The Glen in Cottage 7 activity area. There were other residents present. I was also previously shown, by Kym, a photo she had on her phone of [name redacted]. Can’t give you the date of that occurrence but the same photo has since been published in the resident’s newsletter.”
[67] On 24 July 2019 at 11:21 am, Mr William Reid, a Personal Carer, sent the following email:
“This morning at 11.00an Veronica McDowell and myself witness Kym Kuskey taking photos on her mobile phone while doing an activity. Kim was taking photos of Resident [name redacted]”.
Respondent submits that the Applicant did not understand her professional boundaries
[68] The Respondent submits that there are multiple examples where the Applicant has stepped over professional boundaries required of her and all others in the workplace. The Respondent provides numerous examples including supporting a resident following a direct request from a family member.
[69] It is the Respondent’s view that the Applicant’s continued overstepping of professional boundaries contributed to the Respondent considering the Applicant was unlikely to change her behaviour.
Was there a valid reason for the dismissal?
[70] The Applicant admits that she used her personal mobile phone to take photographs of residents. She also admits she understands that she had been directed not to do so. However, she asserts limited approval had been given to take photos for the resident newsletter only, pending resolution of technical problems.
[71] The Respondent submits no such approval was given and the continued use of the personal mobile phone to take photographs was a valid reason for the dismissal. The Respondent submits the continued use of the Applicant’s personal mobile phone relates to the Applicant’s capacity or conduct because of her continued failure to comply with reasonable and lawful directions about not using her personal mobile phone.
[72] In support of this, the Respondent says that downloading of photographs of residents is a breach of privacy legislation and that the Applicant had been properly trained in the code of Conduct, warned about this behaviour, and that she understood this direction.
[73] I note that this matter does not turn on whether there was a breach of privacy laws, but on the question of complying with reasonable and lawful directions.
[74] The Respondent submits that no approval had been given for use of her personal mobile phone. The Applicant’s assertion of approval for limited purposes was not supported by Ms Wilkinson’s evidence.
[75] The Applicant drew a distinction between texting and sending photos to families and the use of the personal mobile phone for taking photographs for the purposes of the newsletter only. She asserts she did not do the former after being warned. Allegation 2 in the warning letter dated 27 March 2019 was worded as follows:
“You have been using your private mobile phone to contact family members of residents. This includes taking and sending of pictures of residents to family members.”
(emphasis added)
[76] The Applicant makes the point that the warning was directed to contacting family members from her personal mobile phone, not the taking of photos for the newsletter for which she asserts authority was given.
[77] The Applicant relies on the evidence in cross-examination of her support person Ms McDonnell.
[78] Ms Kuskey was consistent throughout in her evidence on this “limited approval” for the purposes of the newsletter. I found her to be an honest witness. Her view was maintained throughout the disciplinary process and the hearing: after the warning she knew she was not allowed to use her personal mobile phone; the camera was not suited to the task because of the downloading problems; she needed approval to use her personal mobile phone instead; and she obtained limited approval pending resolution of the downloading problems.
[79] I accept that Ms Kuskey believed that she needed and obtained approval. I also accept she was dedicated to the residents. That is not to say she was a perfect employee. From her demeanour at hearing, one might see challenges in being her manager. Throughout the proceedings, she expressed her views about how best to manage her work and brought much evidence to support those views. She presented as a very literal thinker, and the lack of training may have impacted more on her than some others. The Respondent expressed concerns about whether the Applicant could properly manage professional boundaries. This are legitimate concerns and I deal with them later in this decision.29
[80] The Respondent states that it directed its employees not to use their personal mobile phone to take photographs of residents. Whether that was a valid reason for the dismissal will turn on whether the direction was lawful and reasonable in the circumstances and whether the Applicant failed to comply with that direction
[81] But the warning, as the Applicant submits, referred to the use of personal mobile phones to contact family members or to send them photographs or text messages. The warning does not specifically prohibit taking of photographs for the purposes of the newsletter.
[82] But did the warning also prohibit the taking photographs of residents for the purposes of the newsletter even though the warning was not explicit in detailing that?
[83] The Respondent says the Applicant should have known. The Code of Conduct training, including privacy issues, should have equipped her to understand that she should not take photographs of residents for the purposes of the newsletter except with the work camera. But the Applicant’s evidence was that she did know this and that she specifically sought and received clarification given the work camera problems. Th Applicant concluded she was allowed to take the photos on her personal mobile phone for the newsletter.
[84] The Applicant’s submission is wholly disputed by the Respondent. Ms Wilkinson could not recall the conversations, or denied they took place, but also said she could not imagine why anyone would ever have agreed to using a personal mobile phone for work purposes.
[85] Yet Ms Kuskey and Ms McDonnell’s evidence taken together lends some support to the Applicant’s proposition, and at least indicates that there were problems using the camera and that this was raised with Ms Wilkinson.
[86] I accept the testimony of Ms Vicki McDonnell. During the hearing, she regularly disagreed with propositions put to her by Ms Kuskey and appeared to me to be an honest witness, not inclined to agree with things that she thought were not right or could not remember.
[87] The fact that she did recall that Ms Kuskey related to her after her meeting with Ms Wilkinson that she had raised with Ms Wilkinson the trouble she was having with the cameras tends to a conclusion that the topic on inability to use the camera was raised with Ms Wilkinson.
[88] Of course, this evidence is only about what Ms Kuskey discussed with Ms McDonnell. It is unclear exactly what was raised by Ms Kuskey with Ms Wilkinson. However, I accept the evidence of Ms Kuskey and Ms McDonnell on this point that at least the trouble the Applicant was having with the camera was discussed between them, and that Ms Kuskey told Ms McDonnell she had raised it with Ms Wilkinson.
[89] Additionally, there is a least one clear inconsistency in the application of this policy as demonstrated by the cross examination of Ms Sheridan, where she also used her personal mobile phone to take a photograph of a resident for work purposes apparently without sanction being applied. The important point here is the similarity of the conduct but the differential treatment. Both Ms Kuskey and Ms Sheridan took photographs of residents on their personal mobile phones but on the evidence before this tribunal, it was only Ms Kuskey who was sanctioned. I am not suggesting the same sanction (or any sanction) would be appropriate for Ms Sheridan but note that there was not even a suggestion not to repeat the behaviour.
[90] It also seems there were inconsistencies about the use of personal mobile phones, with some employer witnesses stating that is was allowed and others indicating it was completely prohibited except where there was a genuine emergency, and other evidence that personal mobile phones were not permitted at all, seemingly precluding even emergency use. 30
[91] I have also considered, as provided for in the Allied case, the entire factual matrix, and therefore what is the employer’s role if any, that may have contributed the employee’s conduct.
[92] The employer’s evidence does not support Ms Wilkinson’s assertion that there were no difficulties with the cameras. In March 2019, the IS email about uploading photos – which was not sent to the Applicant – is clear indication that uploading from the cameras was problematic. Further, Ms Wilkinson’s evidence was that no particular training was given to the Applicant, just access to the camera and its manual, and an assumption that the device was straightforward when it seems it was not.
[93] It is also the Applicant’s case that she had no choice: she had work to perform; she wanted to do it; and in this regard the employer’s conduct can be taken into account.
[94] The Respondent submitted that the Applicant was given an alternative to using her personal mobile phone to take photos, but the Applicant’s case is that the alternative could not be used for its intended purpose because of the downloading problems. She was never shown how, nor trained to upload the photos, nor told it could be done. Technical support was unable to assist. It is the Applicant’s case she constantly enquired about this. Even at the time of her dismissal, the issue was not resolved.
[95] The Respondent points to the email of 3 March 2019 where IT explains how to upload photos but cannot establish that the Applicant ever received a copy of it. There was some suggestion, but no evidence to support that the email may have been discussed at a staff meeting.
[96] On the evidence before the tribunal, the Applicant was given the camera and the written manual. For some months prior, on the Respondent’s own case, the Applicant expressed a view that it was hard to use a camera. That there were issues with uploading photographs is demonstrated by the email from IT. Unfortunately, this email never made its way to the Applicant. This lack of practical training and the apparent non-distribution of an email of 3 March 2019 to the Applicant is conduct by the employer that contributes to the employee’s conduct that led to the dismissal.
[97] The evidence also establishes that there was confusion about employees who had phones whether they be work phones or personal phones. For example, the employer put to Ms Sheridan that she had a work camera or a work phone, but she did not.
[98] Adding to this confusion, when Ms Sheridan, out of concern for a resident, took a photo on her personal mobile phone, she was directed to download it to Ms Tindall and then delete it. On the evidence, no counselling or explanation that she was not to take photographs of residents was provided to Ms Sheridan. This seems inconsistent with the concern, expressed by the employer, about the privacy of residents.
[99] The entire factual matrix of this matter includes: Ms Kuskey’s conduct, which was on the evidence approved or at least known by Ms Wilkinson; the lack of training in use of the camera; known problems with transferring photos from the camera to a computer; an inconsistent approach concerning another employee who took a photograph of a resident on a personal mobile phone.
[100] There is some evidence for the Respondent’s assertion that the Applicant would continue to overstep professional boundaries. While it was a consideration in the ultimate decision to terminate, loss of confidence was not the stated reason for termination, which was use of a mobile phone contrary to lawful directions.
[101] From the above, I conclude that Ms Kuskey had been given a direction limiting her use of the personal mobile phone, but she had also been allowed to take photographs of residents on her personal mobile phone solely to upload for the newsletter. Even if the direction read broadly did extend to those acts, Ms Kuskey reasonably believed she had authority to use her personal device instead of the work camera for the stated limited purpose. This more literal reading of the direction and the conversation said to be approval is both supported on the evidence on balance, and consistent reading given the lack of explicit direction, targeted training, and inconsistency in applying the rules.
[102] It is for these reasons I conclude there was no valid reason for the dismissal.
Was the Applicant notified of the reason?
[103] Notification of a reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 31 and in explicit32 and plain and clear terms.33
[104] The Respondent submitted that the Applicant was notified of the valid reason on the basis that the letters of 12 and 22nd of August 2019 which outlines the allegations of use of personal mobile phone and that a prior warning had been given for similar allegations.
[105] The Applicant’s provided her response of 16 August 2019.
[106] Having regard to the matters referred to above, I find that the Applicant was notified of the reason for her dismissal prior to the decision to dismiss being made, in explicit and plain and clear terms.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[107] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 34
[108] I find the Applicant was given an opportunity to respond to the reason for her dismissal prior to the decision to dismiss being made.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[109] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
Submissions
[110] The Applicant submits that she requested a support person in what she describes as the last meeting with Adele Wilkinson and Deb Ward but was told she did not need a support person at that sort of meeting.
[111] The Respondent does not directly address this matter.
[112] Based on the uncontested submission, I conclude the Respondent unreasonably refused to allow the Applicant to have a support person present at discussions relating to the dismissal.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[113] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[114] Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[115] The Respondent’s enterprise did not lack dedicated human resource management specialists and expertise.
What other matters are relevant?
[116] Section 387(h) of the FW Act requires the Commission to take into account any other matters that the Commission considers relevant.
[117] The Applicant submitted that the following matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable:
• The Applicant was employed for over 11 years with the employer.
• The reason for the dismissal did not justify the dismissal and dismissal was disproportionate to the allegations against the Applicant because the Respondent’s conduct in managing the Applicant’s compliance with the Respondent’s internal policy lacked clarity and direction.
• The Applicant could not have known the Respondent’s true intention about the policy as she had received mixed directions from the management about what was allowed.
• Further there are no allegations that the Applicant took photographs that were inappropriate nor that she took photographs of residents without consent.
[118] The Respondent submitted that the Applicant’s continued failure to comply with the reasonable and lawful direction given the use of her mobile phone. Further, she was afforded a procedurally fair process and was not subject to differential treatment.
[119] The Applicant submits that the manner of her dismissal was unfair in light of both her long-term employment and the allegations made against her.
[120] Additionally, she relies on differential treatment given to other employees. Generally, it was difficult to discern the evidence around these allegations. Nevertheless, in the case of Ms Sheridan taking a photograph of a resident on her personal mobile phone, the Respondent did not deliver any sanction or warning. The Applicant made much at the hearing about this differential treatment. While cautious about this argument, I am prepared to conclude that, in comparable circumstances, there was differential treatment where one employee appears to receive no sanction and another employee was dismissed where both took photographs of residents on their personal mobile phones. On Ms Sheridan’s evidence, uncontested by the Respondent, she was directed to send then delete the photographs, which is precisely what Ms Kuskey said she did. In reaching this conclusion, I acknowledge that Ms Kuskey is a Diversional Therapist and Ms Sheridan a hotel services team leader. The different roles seem to me not to warrant different rules about privacy and security of private information.
[121] The Applicant had a long work history with Bolton Clarke, some 11 years. She had been warned for conduct about use of her personal mobile phone in March 2019 but on her account, she said she not ever again repeat the matters for which she was warned. I find that from time to time she overstepped professional boundaries.
[122] The Applicant considered her conversation with Ms Wilkinson amounted to a limited exception to the prohibition on personal mobile phone use. Ms Wilkinson’s contrary evidence was that she did not recall the conversation; that the conversation did not take place; and that she would not have permitted the limited exception. For reasons detailed above, I have accepted the Applicant’s submission in this regard.
[123] I found the process to be mostly fair to the Applicant though she complains about the way she was asked to leave the premises and possibly the refusal to provide a support person. The dismissal process could have been done better, but I do not conclude it was unfair on that basis.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
[124] I have made findings in relation to each matter specified in section 387 of the FW Act as relevant.
[125] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 35
[126] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was unjust and unreasonable.
[127] I consider the dismissal unjust because the Applicant believed, and the evidence, contested as it was, on balance supported, that she had been given limited approval to take photographs of residents on her own personal mobile phone for the purpose of the residents’ newsletter. Having provided the Applicant with no practical training or support, it is unreasonable then to expect her to do this important part of her job in circumstances where she had raised difficulties about the uploading of photographs from the camera.
CONCLUSION
[128] For the reasons stated above, I am satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.
REMEDY
[129] The Applicant does not seek reinstatement and I consider that reinstatement is not appropriate.
[130] I will now consider whether a payment for compensation is appropriate in all the circumstances.
Submissions
[131] The Applicant submitted that payment of compensation of 14 weeks ordinary pay is appropriate because:
• her considerable length of service with the Respondent, approximately 11 years; and
• the Applicant was unemployed for four months.
[132] The Respondent submitted that payment of compensation is not appropriate because:
• substantiated misconduct should reduce the amount of compensation in line with the provisions of section 392(3) of the FW Act;
• the Applicant continued to misconduct herself by failing to follow the directions given to her;
• she received five weeks notice in lieu and no further compensation should be awarded.
[133] The employer additionally points to suggested postemployment conduct including:
• breaches of confidentiality through the contact of residents and employees after termination;
• inappropriate handling of confidential material by providing copies of transcripts from this hearing to another current employee of the Respondent involved in different litigation.
[134] In all the circumstances, and as further considered below, I consider that an order for payment of compensation is appropriate.
Compensation – what must be taken into account in determining an amount?
[135] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
(a) the effect of the order on the viability of the Respondent’s enterprise;
(b) the length of the Applicant’s service;
(c) the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f) the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the Commission considers relevant.
[136] I consider all the circumstances of the case below.
Effect of the order on the viability of the Respondent’s enterprise
[137] There is no dispute and I am satisfied that an order for compensation would not have an effect on the viability of the employer’s enterprise.
Length of the Applicant’s service
[138] The Applicant’s length of service was 11 years
Submissions
[139] The Applicant submitted that consideration of the Applicant’s length of service would favour the determination of a greater amount of compensation because of the long length of service.
[140] I consider that the Applicant’s length of service supports compensation being ordered.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed
[141] As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.” 36
[142] In deciding that if the actual termination had not occurred, I am of the view that employment would have been likely to continue but within some months would have been terminated by another means.
[143] This is because the Applicant and her former employer clearly had different views about her work and how it should be done. I accept that from time to time, although with good intention, the Applicant did cross significant professional boundaries. Even at the hearing, the Applicant did not reveal any further understanding of the need for professional boundaries. I consider that this on-going lack of understanding would have had a significant effect on any long-term employment for the Applicant and it is for this reason that I consider that the Applicant would have employed for a further three months.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal
Submissions
[144] The Applicant submitted that she took reasonable steps to minimise the impact of the dismissal by seeking alternative employment.
[145] The Applicant submits she was unemployed for four months and casually thereafter for a considerable number of months.
[146] I am satisfied that the Applicant took reasonable steps to mitigate her loss.
Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation
[147] Given the limited amount of time I have concluded the Applicant would have remained in employment, it is unnecessary to consider remuneration earned between dismissal and making of the order.
[148] There are no other matters that I consider that are relevant to the assessment of compensation.
Compensation – how is the amount to be calculated?
[149] As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg). 37 This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages38.”39
[150] The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the Applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 1
[151] I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated the employment, to be 12 weeks pay plus superannuation, on the basis of my finding that the Applicant would likely have remained in employment for a further period of 3 months.
[152] This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”. 40
Step 2
[153] I have not deducted any income as it was earned after the “anticipated period of employment.”
Step 3
[154] There are no contingencies that I am required to consider in the assessment of compensation.
Step 4
[155] I have considered the impact of taxation but have elected to settle a gross amount of 12 weeks pay plus superannuation and leave taxation for determination.
[156] Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.” 41
[157] I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the FW Act.
Compensation – is the amount to be reduced on account of misconduct?
[158] If I am satisfied that misconduct of the Applicant contributed to the employer’s decision to dismiss, I am obliged by section 392(3) of the FW Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.
Submissions
[159] The Respondent submitted that there should be a deduction of the amount of compensation ordered on account of misconduct.
[160] While I have concluded the dismissal was unfair, I accept during employment there was some evidence that Ms Kuskey of misconduct in that she had, from time to time, breached professional boundaries.
[161] As for the post-employment conduct, the evidence is mere assertions, not put to the Applicant. Although I do note there was a contemporaneous email that reflected some contact with residents and employees post termination. I am prepared to accept that there was some misconduct post-termination.
[162] In all the circumstances, I am satisfied that the appropriate amount by which to reduce the amount of the order for compensation on account of misconduct is 10% reduction in the payment of 12 weeks’ pay plus superannuation. I elect to make an order on the basis of time rather than a certain sum in order to finalise this now long-running matter, but will afford parties an opportunity to return to me should there be dispute about this detail.
Order
[163] In light of the above, I will make an order that the Respondent pay to the Applicant 12 weeks’ pay plus superannuation less 10% gross, less taxation as required by law.
[164] In the event that there is a dispute about the calculation of the exact amount of compensation, the parties are invited to seek a conference in the first instance to determine the amount of the order.
COMMISSIONER
Appearances:
K.Kuskey on her own behalf.
J.Foster for Bolton Clarke.
Hearing details:
2020.
Brisbane (by Microsoft Teams).
July, 6 and 7.
Printed by authority of the Commonwealth Government Printer
<PR724258>
1 S382; s385 and s396 of the FW Act.
2 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].
3 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
4 Ibid.
5 Edwards v Justice Giudice [1999] FCA 1836, [7].
6 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
7 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185, [46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
8 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185, [46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410.
9 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 413.
10 Woolworths Ltd (t/as Safeway) v Brown PR963023 (AIRCFB, Lawler VP, Lloyd SDP, Bacon C, 26 September 2005), [34].
11 Briggs v AWH Pty Ltd[2013] FWCFB 3316, [8].
12 The King v Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and Sullivan (1938) 60 CLR 601, 622 (per Dixon J).
13 Izdes v L.G. Bennett & Co Pty Ltd t/as Alba Industries [1995] IRCA 499.
14 APS Group (Placements) Pty Ltd v O’Loughlin [2011] FWAFB 5230 (Lawler VP, O’Callaghan SDP, Roberts C, 8 August 2011) at paras 59–61, [(2011) 209 IR 351]. See also Sexton v Pacific National (ACT) Pty Ltd PR931440 (AIRC, Lawler VP, 14 May 2003) at para. 32; Electricity Commission of New South Wales t/a Pacific Power v Nieass (1995) 81 IR 46 (14 September 1995) at p. 66.
15 Form F2 – Unfair dismissal application, page 10.
16 Ibid, page 11.
17 This is a reference to the employer’s IT support for employees.
18 form F2 unfair dismissal application.
19 Presumably this is ‘camera’.
20 Presumably this is ‘unable’.
21 Transcript of Proceedings, PN60.
22 PN 62-63.
23 PN 536.
24 PN274-282. This evidence under cross-examination is inconsistent with Ms Wilkinson’s evidence for the Respondent that Ms Sheridan would have had a work mobile/camera and not a personal device.
25 PN934-942.
26 PN 957.
27 PN1056.
28 PN1067.
29 This is further dealt as part of the analysis of the appropriate remedy.
30 Compare, for example, the views of Ms Wilkinson, and the statement made by Ms Foster, during cross examination of Ms Sheridan.
31 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
32 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
33 Ibid.
34 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
35 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
36 He v Lewin [2004] FCAFC 161, [58].
37 (1998) 88 IR 21.
38 [2013] FWCFB 431.
39 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].
40 Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
41 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].
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