Kym Suzanne Reedy v Global Cranes Pty Ltd
[2011] FWA 3037
•11 JULY 2011
[2011] FWA 3037 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kym Suzanne Reedy
v
Global Cranes Pty Ltd
(U2010/2173)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 11 JULY 2011 |
Termination of employment - references to rumour
[1] On 31 December 2010 Mrs.Kym Reedy filed an application under s.394 of the Fair Work Act 2009 (‘the Act’) against Global Cranes Pty Ltd for an unfair dismissal remedy for her dismissal on 23 December 2010. Mrs.Reedy was paid in lieu of notice.
[2] The matter was conciliated and no settlement was reached. The matter was set down for arbitration before me on 13 May 2011, and pursuant to s.399 the matter was heard by hearing given the decision of the parties to cross examine witnesses. Written submissions and witness statements were filed. Mrs.Kym Suzanne Reedy, Mr.Ferdinando Vidaic, Ms.Ann Adela Tarrant, gave evidence. The witness statements of Ms.Jemma Reedy, Mr.Neil Henry Reedy, and Ms.Rebecca Grace Reedy were tendered and marked as exhibits, and they were not required for cross examination. I have had regard to all the submissions and evidence.
[3] Mr.Vidaic gave evidence that Mrs.Reedy met with him and Ms.Tarrant briefly on 20 December 2010. He said that he:
‘asked the Applicant what it was that she so particularly wanted to tell Ann [Tarrant] and I. She refused to be direct and referred again to rumours. I said to her three or four times that if she had something she wanted or needed to say to me, she should say it. She made another comment about not being sure if she should say anything at which point I said words to the effect that I was unable to ‘hang around and waste my time’. I then left the office. I did however, have the distinct impression that the Applicant wanted me to leave so that she could speak to Ann Tarrant on her own.’
[4] Ms.Tarrant then later told him what Mrs.Reedy had told her, which was a rumour about him being photographed with another woman at Nebo. Nebo is a small depot owned by Global Cranes. He was upset about such damaging and unpleasant rumours. Mrs.Reedy had not told him immediately about these rumours but had waited until 20 December to do so, and had not told him privately about them. He considered that this was the end of any satisfactory working relationship with Ms.Tarrant and himself and he made a decision to terminate her employment. A meeting with Mrs.Reedy was scheduled for 22 December, and Mr.Vidaic intended to raise the issues concerning the discussion she had just had with Ms.Tarrant at that meeting. Mrs.Reedy did not attend the meeting. He sent a letter of termination to Mrs.Reedy on 23 December 2010 1. The letter provides:
Dear Kym
We are disappointed that you were unable to attend the meeting we had arranged to discuss ongoing problems relating to your work and your attendance. It has subsequently come to our notice that you notified us that you were again on sick leave.
Serious as those issues were, I am much more concerned about your text messages/SMS exchange with Ann Tarrant on the evening of Sunday last, 18 December, and your subsequent meeting with her in the office on Monday 20 December, after I had left.
Your email exchange had led Ann to become concerned about the nature and indeed content of what you were proposing to tell her. On the Monday, and after stringing her along yet again, you disclosed that you had heard a rumour that there was a photograph of myself with another woman, circulating in Nebo. Given my relationship with Ann, you must have known what effect this information would have had on her, and indeed on me.
You could have had no reasonable belief in the truth of such a rumour. You certainly did not come to me to discuss it and to disclose it to Ann in such circumstances is simply disgraceful and makes your continued employment at Global Cranes untenable. In the circumstances, we propose to terminate your employment with immediate effect. For the record, today will be your last formal day of employment.
Although we believe your conduct amounts to serious misconduct we nevertheless propose to pay you what you are entitled under the Award in lieu of notice together with accrued but untaken annual leave entitlements. The requisite amount will be calculated and paid into your bank account in the ordinary way in the next few days.
If you have any personal items at work which you wish to collect, would you please contact Kelly Browne or myself so that arrangements can be made for you to recover any such items.
We would also ask you to return the fuel card, keys, and Company phone.
Yours faithfully
Fred Vidaic
Managing Director
Global Cranes
[5] Mr.Vidaic claimed that Mrs.Reedy had continued to spread damaging rumours about him and that he had contacted solicitors to stop her defamatory remarks.
[6] Ms.Tarrant gave evidence about how the meeting of 20 December 2010 took place, in particular, that Mrs.Reedy had sent her a number of messages on her mobile phone which indirectly referred to information that would surprise Mr.Vidaic and Ms.Tarrant. She said that Mrs.Reedy told her on 20 December after Mr.Vidaic left the meeting that Mrs.Reedy continued in refusing to state her information while indicating that it was most interesting so that Ms.Tarrant became annoyed with her. She says that Mrs.Reedy said that ‘What I have to tell you will change your lives’. She said that she became upset because she had heard several rumours. Mrs.Reedy told her that the news was shocking or disturbing and finally she said that she had been told that there was a photograph of Mr.Vidaic, who was her fiancée, with another woman. Mrs.Reedy did not have the photograph but said that the receptionist, Ms.Kirby Skinner, had told her about it 2.
[7] Mrs.Reedy had a different version of what was said at the meeting on 20 December 3. She said that Mr.Vidaic left the meeting after she mentioned that there were some rumours, stating ‘I don’t want to hear them. I have to go.’ Mrs.Reedy claims that she warned Ms.Tarrant about rumours and about Mr.Vidaic placing trust in the wrong people, and that she said that she was reluctant to repeat the rumours. All three witnesses were cross examined. I had the opportunity of observing the evidence given, and I prefer the evidence given by Mr.Vidaic and Ms.Tarrant where it is inconsistent with the evidence of Mrs.Reedy. I find that Mrs.Reedy did say the words claimed by Ms.Tarrant, and that she did send the messages Ms.Tarrant refers to, to arrange the meeting. I prefer the evidence given by Mr.Vidaic about the conversation he had to the version claimed by Mrs.Reedy.
Valid Reason - Section 387(a)
[8] The term ‘valid reason’ was considered by Northrop J in Selvachandran v. Petron Plastics Pty Ltd 4 . He said:
“Section 170DE(1) refers to a `valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective `valid’. A reference to dictionaries shows that the word `valid’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is” `2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is `sound, just or well founded; a valid reason.’
In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. the provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s170DC.”
[9] There are many legislative changes which make earlier decisions of less or no relevance, because of changes in the objects or the relevant provision of the Act. However, Selvachandran continues to be of relevance and continues to be applied.
[10] Mr.MacAdam repeatedly suggested during cross examination and again in final submissions 5 that Mrs.Reedy’s reference to a photograph of Mr.Vidaic with another woman was in someway an ‘innocent’ reference, for example it might be similar to a photograph of himself with Mrs.Reedy being taken when he left court. He submitted that:
‘This is a matter that the statement might have been entirely innocent. If the inference was drawn, it was drawn by Ms.Tarrant. The inference she’d drawn might have been entirely incorrect and if she reported that to her fiancé, the responsibility of the fiancé was to give notice of the inference to my client and ask for an explanation.
Now, I’m instructed that if Mr.Vidaic had asked for an explanation, my client would have disclosed to him in private what she had been told about the salacious aspects of these affairs. Sorry, that’s the wrong word. I take the word back - ‘affairs’. The salacious aspects of the alleged photograph.’
[11] Mr.Miller submitted that 6:
‘it’s the applicant’s evidence that there was plainly every good reason why this applicant was very annoyed with the company and really wanted to do something to spite Mr.Vidaic and perhaps Ms.Tarrant. She chose to do that by planting the idea in their minds that she had this dynamite that she wanted to disclose, milked that to the maximum effect and then dropped the information on her that there was a picture of Fred with another woman. It cannot possibly be understood to have been an innocent photograph. It can only have been something that was plainly going to be disturbing and upsetting in terms of the personal arrangements that Mr.Vidaic had with Ms.Tarrant. In that respect it was cruel, it was heartless, and in the context of employment it was serious misconduct.’
[12] Despite the valiant submissions of Mr.MacAdam, I find that there was a valid reason for termination of Mrs.Reedy’s employment. Mrs.Reedy deliberately told Ms.Tarrant about a rumour in a manner which was designed to cause trouble in the workplace, in particular between Ms.Tarrant and Mr.Vidaic, who was her fiancée and the Managing Director of Global Cranes. It is clear what a reference to another woman was in the context of the conversation. It was not an innocent reference. If it was it did not justify the references that Mrs.Reedy made to surprising information that would ‘change their lives’. It is ludicrous to compare the references to the photograph in this case with a notional photograph of Mr.MacAdam with Mrs. Reedy outside court.
[13] Mrs.Reedy did not attempt to privately warn Mr.Vidaic that there were unfounded and damaging rumours about him, in an act of loyalty or friendship. She chose instead to disclose a rumour to Ms.Tarrant in a tantalising and highly dramatic manner. Her actions can only be explained as those of a disgruntled employee attempting to cause serious trouble in the workplace for Mr.Vidaic, her employer. If there is any doubt about this, the content of her discussions recorded in the other witness statements lodged on her behalf, namely, Jemma Reedy, and Rebecca Reedy, and Neil Reedy, would dispel such doubt.
[14] Ms.Jemma Reedy records 7 Mrs.Kym Reedy as expressing ‘anger towards Global Cranes and the work practices’, references to Kym Reedy’s ‘confrontation with Kelly Browne’, Mrs.Reedy saying that the responses by Mr.Vidaic (Director) and Ms. Tarrant (Business Manager) ‘were not satisfactory or acceptable in a workplace’, and also stating that ‘it would not surprise me if Fred [Mr.Vidaic] is not being honest about everything in that relationship’, and statements by the applicant that she knew that Mr.Vidaic engaged in drug misuse8.
[15] Neil Reedy gave evidence 9 that Mrs.Reedy listened to a Ms.Kirby stating that she was going to use information that Mr.Vidaic was sleeping with three of her friends in Nebo against Global Cranes and Mr.Vidaic, apparently without protest. Certainly no protest or contradiction by Mrs.Reedy is recorded, rather as with the evidence of Jemma Reedy she is an interested and unprotesting participant who made and tended to confirm adverse statements made about Mr.Vidaic and Global Cranes. Rebecca Reedy gave evidence10 that Ms.Kirby made salacious allegations of sexual misconduct by Mr.Vidaic and other matters, including what appears to be an expressed intention to engage in some form of threat of releasing a photograph to procure a payment said to be owing to her partner, again without contradiction or protest from Mrs.Reedy, the applicant. Those statements record salacious and unproven rumours about the sexual behaviour and drug use of Mr.Vidaic and hostility on the part of Mrs.Reedy towards her employer, or at the very least a lack of loyalty. They are consistent with a malicious intent on the part of the applicant, Mrs.Reedy.
[16] She was disgruntled for a variety of reasons, including because she was in difficulties with another employee, Mr. Kelly Browne, the Financial Controller, who she directly reported to. Mr.Vidaic gave evidence that Mrs.Reedy brought a list of accounts payable to him which Mr.Browne had not approved, told him they were approved by Mr.Browne, and on that basis Mr.Vidaic approved them. In the view of Mr.Vidaic she should have obtained Mr.Browne’s approval before doing so, and had not done so 11. I prefer the evidence given by Mr.Vidaic to contrary evidence given by Mrs.Reedy.
[17] Mrs.Reedy’s deliberate attempt on 20 December to upset Mr.Vidaic’s fiancée, and therefore the fiancee’s relationship with Mrs.Reedy’s employer, is not consistent with an ongoing working relationship under the contract of employment with Mr.Vidaic. Mr.Vidaic had the right to expect a degree of loyalty and cooperation from Mrs.Reedy. Mrs.Reedy instead acted to cause serious trouble for him in the business by engaging in a course of conduct which could only have been intended to seriously disrupt his private and workplace relationships. It would be grossly unreasonable to expect an employer to work with, to trust and rely upon, an employee in these circumstances. This constitutes a valid reason for termination of employment.
Notified of that reason - Section 387(b)
[18] Mrs.Reedy was notified of the reason for her termination in the letter of termination dated 23 December 2010.
An opportunity to respond - Section 387(c)
[19] I accept that Mr.Vidaic intended to notify Mrs.Reedy of the allegations at a meeting on 22 December. However, Mrs.Reedy did not attend that meeting and therefore was not given an opportunity to respond to the allegations. Mrs.Reedy had been sick. Mrs.Reedy was not given an opportunity to respond to the valid reason. Nevertheless, the circumstances mitigate this to some extent.
Unreasonable refusal to allow her to have a support person - Section 387(d)
[20] This is not relevant.
Unsatisfactory performance - Section 387(e)
[21] Termination was on the grounds of misconduct, not unsatisfactory performance.
Size of business - Section 387(f)
[22] The business is of a size that should mean that it follows appropriate procedures.
Other matters
[23] I have taken all submissions and material put into account.
Conclusion
[24] The termination of Mrs.Reedy’s employment was not harsh, unjust or unreasonable. She was afforded a fair go all round. An order dismissing the application is published with my decision, in PR510749.
DEPUTY PRESIDENT
Appearances:
Mr A I MacAdam, Barrister for the Applicant.
Mr D Miller of the Australian Industry Group for the Respondent.
Hearing details:
2011
Brisbane
13 May
1 Exhibit M1, paragraphs 13-17
2 Exhibit M3, paragraph 5-7
3 Exhibit R1, paragraphs (xxx)-(xxxvi)
4 (1995) 62 IR 371 at 373
5 Eg. PN779, 790, cross examination of Ms.Tarrant, PN698, 709 cross examination of Mr.Vidaic; PN908 Submission of Mr.MacAdam
6 PN1000
7 Exhibit R2, paragraph (iii)
8 Exhibit R2, paragraphs iv-vi
9 Exhibit R3, paragraph iv
10 Exhibit R4
11 Exhibit M1, paragraph 6-9
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