Leanne Didcock v Kim Bainbridge Legal Service P/L T/A Garden and Green Lawyers

[2014] FWC 794

[2014] FWC 794

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leanne Didcock
v
Kim Bainbridge Legal Service P/L T/A Garden & Green Lawyers
(U2013/2713)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 FEBRUARY 2014

Application for relief from unfair dismissal - small business fair dismissal code - application dismissed.

[1] Leanne Didcock’s employment with Kim Bainbridge Legal Services Pty Ltd T/A Garden & Green Lawyers was terminated on 5 August 2013, not because of her work performance, but because of her behaviour towards other staff.

[2] On that day it was alleged that Ms Didcock told another staff member to “piss off” and gave her “the finger.” For Mr Bainbridge this was the last straw and he decided to terminate her employment. She was paid in lieu of notice and finished work that day.

[3] An objection was made to Ms Didcock’s unfair dismissal application. Mr Bainbridge submitted that the employer was a small business and as he complied with the small business fair dismissal code the application should be dismissed.

[4] The preliminary issues in dispute:

1. Was the employer a small business?

2. Did the employer comply with the small business fair dismissal code (the Code)?

Was the employer a small business?

[5] Ms Didcock initially submitted that the employer was not a small business as it employed 15 employees at the date of the dismissal. No evidence was called to support this contention. Mr Bainbridge gave evidence that the company had 11 employees at the time of the dismissal and that two of the persons who worked at the office were not employees but contractors and that three employees were intermittent casuals and are not included in the count of employees.

[6] A business is a small business if at the date of the dismissal there are fewer than 15 employees employed. Casual employees who are not employed on a regular and systematic basis are not included in the count of employees. 1

[7] I accept the evidence of Mr Bainbridge that the firm had less than 15 employees. That evidence was given on oath and no evidence to the contrary was produced.

Did the employer comply with the Code?

[8] In cases not involving summary dismissal the Code required that the employee must be given a reason why he or she is at risk of being dismissed. That reason must be a valid reason based on the employee’s conduct. The employee must be warned that she risks being dismissed if there is no improvement. The employee must be given an opportunity to respond to the warning and be given a reasonable chance to rectify the problem.

[9] Ms Hansen, the Accounts Clerk and Mr Bainbridge’s partner, gave evidence that on 5 August 2013 she approached Ms Didcock about an invoice. The encounter was not a pleasant one from Ms Hansen’s perspective. At the conclusion of the interaction Ms Hansen told Ms Didcock that “[she] would like to work with [her] but [Ms Didcock didn’t] seem to want that.” Ms Hansen then walked away but as she turned she saw Ms Didcock give her the finger and heard her say “piss off.” Ms Hansen told the receptionist, Ms Christine Oliver, who took a note of what Ms Hansen told her. Ms Hansen also kept a note of what happened and told Mr Bainbridge. 2 Ms Didcock denied telling Ms Hansen to piss off or giving her the finger.

[10] Mr Bainbridge rang Ms Didcock to ask her version of events and asked her what her problem was with Ms Hansen. Ms Didcock denied that she had sworn at Ms Hansen or gave her the finger. Mr Bainbridge interviewed Ms Hansen and he accepted her version of events because the behaviour was consistent with Ms Didcock’s past behaviour. For Mr Bainbridge this was the last straw. He waited until the end of the day and as Ms Didcock had not approached him further about the incident or apologise to Ms Hansen, he decided to dismiss Ms Didcock.

[11] Ms Didcock was initially employed to work as Mr Bainbridge’s litigation secretary and personal assistant. However after she refused to fax a personal document, at Mr Bainbridge’s request, for Mr Bainbridge’s son who was overseas at the time Mr Bainbridge decided to transfer her to the conveyancing department.

[12] Prior to Ms Didcock’s employment, the business had decided to introduce changes to the procedures for the invoicing of clients. Prior to these changes each department had prepared their own invoices. It had been found that a number of errors had occurred which saw the business incur expenses that should have been billed to clients. It was decided to centralise all invoicing, which became the responsibility of the accounts section. These changes had been rolled out to other departments but in 2013 the changes were introduced to the conveyancing department. Mr Bainbridge and Ms Hanson, gave evidence that Ms Didcock was unhappy with these changes and resisted their implementation. The evidence established that Ms Didcock was not alone in raising concerns about the impact of these changes on the conveyancing department. However, the issue in this dispute was not that Ms Didcock had concerns but how she raised those concerns.

[13] In February 2012, Mr Bainbridge gave Ms Didcock a written warning. The warning raised two issues. One issue was that referred to in paragraph [11] of this decision. The second issue involved an allegation that Ms Didcock had verbally abused Ms Hansen. 3 That letter advised her that she was expected to act professionally and to follow the policies and procedures and to modify her behaviour. She was advised that her employment was at risk if her behaviour continued.

[14] Ms Didcock denied ever receiving this letter of warning. She tendered the meta data associated with the creation of the document to suggest that the letter was a fabrication.

[15] On 10 April 2013, Ms Didcock was present at a staff meeting where Ms Didcock along with another staff member were told that “any further insolent comments made about Kim would not be tolerated and would be grounds for dismissal.” 4 Ms Didcock accepted that the statement was made but denied that these comments were directed at her and Paulina Yann.

[16] On 18 April 2013, a meeting was held to discuss the changes to the conveyancing accounts. Mr Bainbridge gave evidence that Ms Didcock interrogated him about the changes which he found offensive and humiliating. Ms Deanne Earle gave evidence that she was upset as a result of the meeting but did not attribute this to Ms Didcock’s behaviour rather she attributed it to the frustration she felt at the resistance to the changes exhibited by the conveyancing department.

[17] In around May 2013, Ms Hansen started keeping diary notes of her interactions with Ms Didcock. The diary notes evidence a break down in the relationship between her and Ms Didcock. 5 That the relationship had broken down was not disputed by Ms Didcock. In fact it was Ms Didcock’s evidence that she asked Mr Bainbridge to arrange mediation between her and Ms Hansen because she “had no idea why [Ms Hansen] had issues with [her] personally.”6

[18] On 2 July 2013, Ms Didcock was issued with a letter of warning. In that letter Mr Bainbridge raised his concerns about Ms Didcock’s dealings with Ms Hansen and other staff. He also referred to her negative attitude to the introduction of the new accounting system. Mr Bainbridge advised Ms Didcock that “there would need to be a substantial and significant change in [her] overall attitude to [him] and [his] staff, otherwise [her] employment with [his] firm is clearly in jeopardy.” 7

[19] Mr Bainbridge gave evidence that Ms Didcock was given several verbal warnings about her behaviour and the way she spoke to other staff. He found her to be rude, unprofessional, discourteous and offensive. 8

[20] Ms Didcock denied that she behaved in the way described by Mr Bainbridge.

[21] Ms Paulina Yann, a former worker in the conveyancing department, gave evidence. In response to a question about whether she had seen Ms Didcock be rude to staff or clients, Ms Yann said no though she acknowledged that there was tension with other staff caused by frustration because of the workload in the conveyancing department. 9 She agreed with Ms Didcock that she had not been rude or aggressive at the meeting on 18 April 2013 and she did not recall her being rude or discourteous to Mr Bainbridge or Ms Hansen.10

[22] Mr Dominic Calabrò, a lawyer consulting to Mr Bainbridge, gave evidence that he had not heard Ms Didcock be rude to clients or staff. In cross examination, Mr Calabrò gave evidence that Ms Didcock was moved to the conveyancing department as an alternative to her being dismissed by Mr Bainbridge because he could no longer work with her. 11 He also gave evidence that Mr Bainbridge had spoken to him about Ms Didcock’s behaviour being unacceptable.12 He said that Mr Bainbridge particularly raised Ms Didcock’s treatment of front of house staff.13 He told Mr Bainbridge that Ms Didcock was a model employee and they had issues with reception staff putting calls through when they were busy. He raised Mr Bainbridge’s concerns with Ms Didcock and suggested that she moderate how she spoke to the reception staff.14

[23] Ms Earle, the Bookkeeper, gave evidence that at the meeting on 18 April 2013 she felt very uncomfortable at that hostility directed at the finance department about the new processes. She also gave evidence that she was asked by Ms Hansen to approach Ms Didcock as she did not want to do it herself because of Ms Didcock’s attitude to her. She also agreed that Ms Didcock had been told not to make insolent comments about Mr Bainbridge. 15 In cross examination, in response to a question about whether she had seen any aggression towards Ms Hansen, she gave an example of Ms Didcock making a negative comment implying Ms Hansen got special treatment.16

[24] Ms Monica Mayers, the receptionist, gave evidence that Ms Didcock was unhelpful and rude. 17 She also gave evidence that Ms Didcock’s “aggressive attitude made [her] nervous and anxious in having to put calls through.”18 She gave evidence of Ms Didcock swearing and making negative comments about her colleagues, including Mr Bainbridge.19 This evidence was not challenged or denied by Ms Didcock.

[25] Ms Christine Oliver, a secretary and relieving receptionist, gave evidence confirming that Ms Hansen told her at approximately 10:00am on 5 August 2013 that Ms Didcock told her to “piss off” and gave her the finger. She also said that Ms Didcock was quite aggressive when she put calls through. 20 This evidence was not challenged or denied by Ms Didcock.

[26] I find that the dismissal was consistent with the small business fair dismissal code.

[27] Ms Didcock was on notice that Mr Bainbridge had serious concerns about how she spoke to other staff. She had been spoken to by Mr Bainbridge and by Mr Calabrò, her direct supervisor, about how she spoke to other staff.

[28] Ms Didcock said she did not get the first warning letter and relied on inconsistencies between the letter and the meta data attached to the letter. 21 The meta data describes the letter as 2 pages, with 9 lines and 2 paragraphs. This does not match the letter produced. While Mr Bainbridge was not able to explain the discrepancy, I am not prepared to find that the letter had been fabricated.22

[29] Even if Ms Didcock did not get the first warning, the Code does not require two written warnings. Ms Didcock had been given a very clear written warning on 2 July 2013. Even if I accept that some of the matters raised in that letter were not valid complaints (for example, I accept that Ms Didcock had not been told about the change in policy about children in the office) that does not detract from the warning she was given about how she spoke to other staff.

[30] She had previously been spoken to about her manner by both Mr Bainbridge and Mr Calabrò. She was told that she was at risk of losing her job.

[31] Just over one month later Ms Didcock, albeit presumably because Ms Hansen had turned away and she did not think she would be observed, gave Ms Hansen the finger and told her to “piss off”. Ms Didcock denied the conduct. Ms Hansen and Ms Didcock were the only witnesses to this event. I prefer Ms Hansen’s evidence about what happened on 5 August 2013. Her evidence on this was convincing. She was frank in her admission about her frustration with her relationship with Ms Didcock. 23 Further she immediately told other persons about what had happened and recorded the incident in a file note.

[32] This is a small business but even in a large business employees are required to treat their fellow workers in a polite and professional manner. While I accept that more could have been done to resolve the relationship breakdown between Ms Hansen and Ms Didcock given they were unable to resolve their differences, Ms Didcock was not entitled to behave in an offensive way to another staff member. She was warned about her poor conduct and she continued to exhibit the same behaviour. She was given notice of dismissal and paid in lieu.

[33] I find that her dismissal was consistent with the small business fair dismissal code and hence her application must be dismissed.

DEPUTY PRESIDENT

Appearances:

Ms L. Didcock appearing on her own behalf.

Mr K. Bainbridge appearing on behalf of the Respondent.

Hearing details:

2013

Swan Hill;

17 and 18 December.

 1 See section 23 of the Fair Work Act 2009.

 2   Exhibit R1 at KMB 3.

 3   Exhibit R1 at KMB1.

 4   Exhibit R2 at KMB 4.

 5   Exhibit R1 at KMB 2.

 6   Exhibit A1 at F.

 7   Exhibit R1 at KMB 2.

 8   Ibid.

 9   Transcript at PN 170.

 10   Ibid at PN 194-196.

 11   Ibid at PN 675.

 12   Ibid at PN 696.

 13   Ibid at PN 697.

 14   Ibid at PN 698.

 15   Exhibit R6.

 16   Transcript at PN 574.

 17 Exhibit R5 at [3].

 18 Ibid at [6].

 19   Ibid at [7]-[8].

 20   Exhibit R7 at [2]-[3].

 21   Transcript PN 766-792

 22   Ibid PN

 23   Ibid PN 507-508

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