Leeanne McMahon v L C Dyson's Bus Service Pty Ltd T/A Dysons
[2018] FWC 7285
•28 NOVEMBER 2018
| [2018] FWC 7285 [Note: An appeal pursuant to s.604 (C2018/7169) was lodged against this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Leeanne McMahon
v
L C Dyson’s Bus Service Pty Ltd T/A Dysons
(U2018/5292)
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 28 NOVEMBER 2018 |
Application for an unfair dismissal remedy.
Ms Leeanne McMahon (Ms McMahon)(the Applicant) was employed by L C Dyson’s Bus Service Pty Ltd T/A Dysons (Dysons)(the Respondent) from April 2001 as a school bus supervisor until her dismissal at the initiative of the employer on 14 May 2018.
On 22 May 2018, Ms McMahon made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of her dismissal by Dysons.
Dysons submit on 4 May 2018 Ms McMahon acted aggressively by physically picking up a special needs child and forcing him onto a bus against his will. They further submit that the force of her actions caused the child’s pants to come down exposing his buttocks. Dysons submit Ms McMahon had admitted to the incident and therefore her application should be dismissed.[1]
Ms McMahon submits she had worked for Dyson’s for 17 years during which time she had only ever received a single warning for not waiting to pick up a child during a morning bus run, a matter that she had no control over.[2] Ms McMahon submits that there was no basis for the dismissal as she had simply spoken to the child firmly and in the alternative, if Dysons objected to the way she had interacted with the child, she should have been counselled for her conduct.[3]
Procedural Background
This matter was conciliated on 25 June 2018 and again on 22 August 2018 however remained unresolved. The matter was subsequently listed for arbitration.
I granted permission for Mr Dircks, a paid agent from Just Relations – Consultants to appear on behalf of Ms McMahon and Mr Burmeister of Counsel to appear on behalf of Dysons as I was satisfied the matter was sufficiently complex.
Ms McMahon gave evidence on her own behalf.
The following witnesses gave evidence on behalf of Dysons:
· Mr James Deacon, Operations Manager
· Ms Janice Ciechomski, Human Resources Business Partner
· Ms Rochelle Dickason, Group Manager Human Resources
Preliminary Matters
Ms McMahon filed her application within the time limit prescribed by s.394(2) of the Act.[4]
During her employment with Dysons, the L C Dyson’s Bus Services Pty Ltd Route Services and Regional Services Union Collective Agreement 2011 applied and her annual earnings were well below the high income threshold.[5] Ms McMahon’s period of employment with Dyson’s was longer than the minimum employment period. Ms McMahon is therefore a person protected from unfair dismissal under the Act.
As at 14 May 2018, Dyson’s had approximately 970 employees, therefore the Small Business Fair Dismissal Code does not apply.
No issue of redundancy arose in the proceeding and I find that the dismissal was not a case of genuine redundancy.
Therefore the issue for me to consider is whether Ms McMahon’s dismissal was harsh, unjust or unreasonable.
The cases presented
Dysons is a bus company engaged to transport special needs children to and from schools in accordance with the timetable developed between the school and Dysons. As part of its service Dysons provides a bus, Bus Driver and Bus Supervisor for each morning and afternoon shift.
Ms McMahon commenced with Reservoir Bus Company on 23 April 2001, which was later acquired by Dysons in November 2012. It is not in dispute that the role of the Bus Supervisor is to supervise the transit of students aged 5 to 18 safely to and from the school. It is also not in dispute that Ms McMahon’s supervision of the children commences when they are on the bus and ceases when they leave the bus. Up until that stage the student is the responsibility of either the parent or the school representative.[6]
Ms McMahon was dismissed following an incident on 4 May 2018 in which she picked up a 5 year old special needs student (Student A) against his will and forced him onto the bus. In doing so Ms McMahon failed to consult with the Teachers’ Aide who was at the time responsible for Student A. Dysons submit Ms McMahon yelled and acted aggressively, using such force that the student’s pants were forced down exposing his buttocks. Ms McMahon had admitted the incident during a meeting held in May 2018 however she submits she was not aggressive, did not yell and was not the cause of Student A’s pants falling down.
Dysons also submitted that Ms McMahon had admitted to using her personal phone whilst she was supposed to be supervising students and, when it was brought to her attention that the conduct was not acceptable, she preferred her own approach over her employers whilst failing to acknowledge her conduct had placed her own convenience ahead of the safety of the children.
Evidence of Ms McMahon
Ms McMahon usually worked 15.5 hours per week, being school mornings from 6:55 to 9:30 and Friday afternoons from 14:25 to 17:00, supervising special needs children on the school bus. Her evidence was that her role was to keep order on the bus, keep the children safe, keep their seatbelts on and ensure they don’t hit each other.[7]
Ms McMahon’s evidence was on the afternoon of 4 May 2018 the teacher’s aide brought three juniors to the bus, two of which boarded without incident, however Student A was “playing up”.[8] Ms McMahon’s evidence is that Student A’s mother had instructed her to be firm with him. Ms McMahon submitted that Student A was lying on the ground so she stepped of the bus, picked him up, put him on the bus and seated him.[9] There were a number of buses lined up waiting and Ms McMahon’s evidence was that she thought if Student A continued to lie on the ground one of the other students would stand or fall on him.[10] Once on the bus Ms McMahon then put Student A’s seatbelt on, pulled up his pants and did them up.[11] Ms McMahon’s evidence was that she regularly picked Student A up, has done so in the presence of his parents and had never been instructed not to pick him up.[12] Ms McMahon’s evidence was that Student A’s pants were already down when she picked him up and she was unaware of how they had come to be undone.[13]
In relation to Ms McMahon’s use of her personal mobile phone, Ms McMahon’s evidence was that after all the students were seated on the bus and the bus had commenced on its route she noticed she had missed two calls from her son. Ms McMahon called her son back on her personal mobile phone and says the call lasted for 3 minutes and 47 seconds. Ms McMahon’s evidence was that she made sure everyone was sitting on the bus properly before she made the call and she was not aware that she could not make personal phone calls.[14] Ms McMahon also gave evidence that she is on her work phone for work purposes all the time and at other times she had to stand by the bus drivers to give directions which could also distract her from supervising the children.[15]
On 8 May 2018 Ms McMahon received a phone call around 4:30pm informing her that due to a reported incident she was suspended from her employment. She attended a meeting on 10 May 2018 with Mr Deacon during which he put the allegations to her[16] and asked if she wanted to view the CCTV footage, which Ms McMahon declined. She submitted that Mr Deacon told her he felt she had manhandled Student A and was too abrupt. Mr Deacon suggested Ms McMahon was angry at the time, to which Ms McMahon responded she was not angry she was agitated because she felt the teacher’s aide was not doing her job.[17] Ms McMahon gave evidence that Mr Deacon had put the allegation to her that she had shouted or yelled at Student A and that she had raised her voice. She also gave evidence that she had told Mr Deacon that she had not consulted with the teacher’s aide prior to picking Student A up and placing him on the bus.[18]
Ms McMahon during cross examination stated that she had declined to look at the CCTV footage because her opinion of what had occurred would differ from that of Mr Deacon as he thought her behaviour was aggressive and she thought it wasn’t. Ms McMahon did not contest the content of the CCTV footage and in cross-examination conceded that she was very annoyed on the day of the incident.[19] Ms McMahon’s evidence was that she told Mr Deacon she understood that each child has its own personality and some children need to be spoken to more firmly than others, and as a mother with a special needs child she had the benefit of having the perspective of both a parent and an employee. The incident with Student A was not unusual and on his mother’s instruction she understood if she was not firm with Student A, he would not listen. [20]
Ms McMahon’s evidence was that she had witnessed other supervisors and teachers pick children up and put them on the bus and she had in fact done this herself many times before.[21]
Ms McMahon also gave evidence that her job description and Special School Supervisors and Drivers Guidelines, which form part of a Memorandum of Understanding (MOU) she had signed, provide that incidents of reportable misbehaviour by students are to be referred to her manager and the school Principal. However it was her responsibility to manage the process of students getting on and off the bus and to and from their homes and schools safely, which often involved providing instruction and direction to the students in managing their behaviours.[22] Her evidence in cross-examination was that her responsibilities commenced when students got on the bus and ended when they left the bus.[23] Ms McMahon refuted that she ever yelled at the students and described her tone as talking in a firm voice.[24] Her evidence was that she had spoken to other students in the same manner in which she had spoken to Student A.[25]
Ms McMahon met with Mr Deacon and Ms Ciechomski on 14 May 2018. Ms McMahon does not dispute that the allegations were again put to her during the meeting and she was again asked if she wanted to view the footage and again declined. [26]
Ms McMahon explained that on the day of the incident she was getting more agitated and was thinking “why couldn’t [the teacher’s aide] just pick him up and put him on the bus” and that Student A was not an easy child to handle.[27]
Evidence of Mr James Deacon
Mr Deacon gave evidence that at the time Ms McMahon was employed by Dysons he held the role of Reservoir Depot Manager, responsible for overseeing the Reservoir Depot and managing 150 employees.[28] He first commenced working with Ms McMahon two years prior to her dismissal. Mr Deacon’s evidence was that his relationship had broken down with Ms McMahon after he had to counsel her over her deteriorating behaviour.[29]
Mr Deacon’s evidence was that service delivery with the School is managed in accordance with a MOU developed by the Student Transport Unit at the Department of Education and Training, the School and Dysons. Essentially, the MOU establishes the overarching framework for service delivery. Mr Deacon’s evidence was that Ms McMahon was required to comply with the applicable MOU and had signed a copy as recently as January 2018.[30]
On 4 May 2018 Mr Deacon received an email from the Assistant Principal of the School regarding an incident involving Ms McMahon and Student A. The teacher’s aide had submitted a complaint to the Assistant Principal regarding Ms McMahon’s conduct. The email states;
“Hello James and Grant,
One of our teacher aide who assists with the Lower Primary students moving to their bus reported the following to me today.
“When I was assisting a student ([Student A], 5 year old prep) this afternoon he was hesitant to get on the Doreen bus. I stood with the student while we let others onto the bus before us. The bus supervisor then aggressively picked up the student and yelled in his face to get on the bus and sit down.”
I have viewed our footage and can indeed confirm that Leanne gets off the bus, picks up the student and takes him up the bus steps.
There is no sound so I cannot confirm what was said but my primary concern is that Leanne without justification, came onto the footpath, took over from [the school] staff who were still responsible for [Student A], and physically bundled/carried him onto the bus.
On the evidence so far we are very concerned about this action and ask that you come to view the footage on Monday.
You may also wish to check your cameras for #926 from 15:01 on Friday 4th May.
Please contact me at your earliest opportunity.”[31] (emphasis in original)
Mr Deacon and Mr Cheyne Willson, Service Delivery Transport Coordinator, viewed the CCTV footage of the incident and listened to the audio. Mr Deacon sought advice from Ms Ciechomski regarding the appropriate process and was advised to stand Ms McMahon down pending the outcome of the investigation. [32]
Mr Deacon’s evidence was on 10 May 2018 he and Mr Willson met with Ms McMahon to obtain her responses to the incident. During the meeting he offered to show Ms McMahon the CCTV footage however she declined to view it. Mr Deacon submitted Ms McMahon explained during the meeting that she was frustrated with the teacher’s aide and instinctively took over. Mr Deacon was concerned that Ms McMahon had not shown an appreciation for the fact that she had done the wrong thing, a position Ms McMahon maintained throughout the hearing.[33]
On 14 May 2018 Mr Deacon and Ms Ciechomski met with Ms McMahon at which time she was informed of the findings of the investigation. Ms Ciechomski conducted the meeting and gave Ms McMahon an opportunity to respond to the findings. Mr Deacon’s evidence was that Ms McMahon maintained her position that she had not done anything wrong and the meeting was adjourned. Mr Deacon’s evidence was that he believed Ms McMahon’s conduct was causing significant reputational damage to Dysons and it was agreed that Ms McMahon’s employment should be terminated. Mr Deacon submitted he and Ms Ciechomski then made a phone call to discuss the recommendation for termination with Mr Paul Giusti, Group Manager Service Delivery. His evidence was that Mr Giusti supported their decision. Mr Deacon then reconvened the meeting and Ms Ciechomski informed Ms McMahon her employment would be terminated.[34]
Evidence of Ms Janice Ciechomski
Ms Ciechomski’s evidence was on 7 May 2018 she had received a call from Mr Deacon advising her that he had received a complaint from the Assistant Principal of the School about the conduct of Ms McMahon. They discussed that Mr Willson would accompany him in discussions with Ms McMahon and she advised Mr Deacon to conduct an investigation. She was subsequently sent the minutes of the meeting that had occurred on 10 May 2018[35] by Mr Willson.[36]
Ms Ciechomski along with Mr Deacon viewed the CCTV footage together and considered Ms McMahon’s responses provided at the 10 May 2018 meeting. Ms Ciechomski formed the view from the footage that Ms McMahon’s behaviour was inappropriate and aggressive. Ms Ciechomski reviewed Ms McMahon’s performance history contained within Dyson’s information management system and became aware of a previous warning and two other complaints Ms McMahon had been counselled for in March 2018. Ms Ciechomski formed the view that Ms McMahon’s behaviour was escalating.[37]
A meeting was arranged with Ms McMahon by Mr Deacon to take place on 14 May 2018. Ms Ciechomski’s evidence was that Mr Deacon had confirmed with her that he had informed Ms McMahon she was entitled to bring a support person. Ms Ciechomski’s evidence is that Ms McMahon attended the meeting without a support person.[38]
At the commencement of the meeting, Ms Ciechomski submitted she provided Ms McMahon with a further opportunity to have a support person and Ms McMahon declined. She offered for Ms McMahon to review the CCTV footage and she again declined. Ms Ciechomski requested to hear Ms McMahon’s version of the events that took place involving Student A.[39] Ms Ciechomski’s evidence was that Ms McMahon had stated that she had become frustrated with the teacher’s aide and couldn’t understand why she wouldn’t put the student on the bus forcibly. Ms McMahon had admitted she hadn’t spoken to the teacher’s aide before forcing the student onto the bus herself. Ms Ciechomski informed Ms McMahon that she herself had viewed the footage associated with the complaint and thought that her conduct was inappropriate. Ms Ciechomski’s evidence is that Ms McMahon responded stating that that was just Ms Ciechomski’s opinion and she herself didn’t think it was inappropriate.[40]
Ms Ciechomski also raised her concerns about the way Ms McMahon had spoken to the driver of the bus at the time of the incident to which Ms McMahon had replied that she found the driver “frustrating” as he was slow. Ms Ciechomski further raised her concerns about Ms McMahon’s use of her mobile phone and Ms McMahon did not see any issue with the use of her mobile phone.[41]
At the end of the meeting Ms Ciechomski took a break during which time she called Mr Giusti and informed him of her intention to dismiss Ms McMahon. Her evidence was that Mr Giusti supported her decision. Ms Ciechomski reconvened the meeting and informed Ms McMahon that “after taking into account the investigation findings, her comments at the meeting and the pattern of performance issues since 2017 her employment would be terminated effective immediately.”[42]
Ms Ciechomski’s evidence during cross-examination was that of particular concern for Dysons was that Student A was a five year old child in his first year of school and was hesitant to get on the bus. The teacher’s aide was looking after him and trying to persuade him onto the bus. She stated that;
“ …..The CCTV footage actually showed Ms McMahon quite aggressively storm down the steps and pick up that child and from the bottom plonk him into the landing and then walk up the steps, pick him up again and pop him into his seat. Now by this stage his bottom had actually come-was hanging out of his pants and she stood behind him and she got him up. So it’s about-it’s about how that is done. So, yes, she could assist a child to help them into their seat, but it needs to be done in a caring, appropriate, respectful way, and I don’t believe that that occurred on that day.”[43]
Ms Ciechomski’s evidence was that viewed in the context of other complaints received about Ms McMahon she saw the conduct as an escalation of behaviour to a situation where Ms McMahon had inappropriately physically touched a child and this was deemed to be quite significant for Dysons.[44] Ms Ciechomski in her evidence makes the point that there may be nothing inappropriate in Ms McMahon generally assisting students onto the bus however in the current situation the way she had conducted herself was inappropriate.[45]
Evidence of Ms Rochelle Dickason
Ms Dickason’s evidence was that as far as she was aware Ms McMahon had no prior conduct issues until October 2017. Ms Dickason was not involved in the investigation into the reported conduct regarding Student A.[46] On 14 May 2018 she reviewed the CCTV footage and her evidence was that in her view the conduct of Ms McMahon was both aggressive and unprofessional.[47] Ms Dickason’s evidence was that Ms Ciechomski had informed her she was considering the termination of Ms McMahon and was meeting with Ms McMahon later that day to provide her with an opportunity respond to the allegations in case there were any extenuating circumstances she hadn’t already considered. Ms Dickason advised Ms Ciechomski she agreed with her assessment of the circumstances and endorsed her decision to terminate Ms McMahon in the absence of any extenuating circumstances. [48]
Consideration
Harsh, Unjust Unreasonable
Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.”
The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd.[49] McHugh and Gummow JJ explained as follows:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”[50]
I will now consider each of the matters set out in s.387 of the Act.
Was there a Valid Reason for the dismissal- s.387(a)
The Act requires consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct. A valid reason is one that is ‘sound, defensible and well-founded. The question the Commission must address is whether there was a valid reason, in the sense both that it was a good or sufficient reason, and a substantiated reason. It is well-established that a valid reason need not be one that was given to the employee at the time of the dismissal.
Dysons submit that the incident with Student A was part of an escalating pattern of inappropriate conduct that had occurred over a 9 month period. The first incident in this escalating behaviour relied upon by Dysons was one in which Ms McMahon was alleged to have failed to wait the designated 3 minutes after pick up time for a student at his designated stop even though there was a long established process in place for doing so. They submit Ms McMahon, in her defence, had taken a purely technical approach rather than a practical approach that would have ensured the safety of the student, an attitude that caused Dysons concern.
Ms McMahon disputed the evidence of Mr Deacon being that 3 minute rule applied to morning pickups and it was not in contention that the rule had not been committed to writing at the time Ms McMahon received her warning. Whilst I agree with Ms McMahon that this matter did not warrant a warning the incident is of a nature that is not related to the conduct Ms McMahon was dismissed for and I have not taken it into consideration in my determination.
The second incident referred to by Dysons involved two separate complaints from a concerned parent about Ms McMahon persistently yelling at their child, causing the child to become anxious. Ms McMahon’s evidence was that the student’s behaviour was unacceptable and her treatment of the child was not harsh but firm. Ms McMahon did not dispute the complaints were put to her on two separate occasions by Mr Willson or that she was informed her actions were “too harsh”, however her evidence was that she was not counselled over her conduct. I do not consider this to be an accurate assessment of the situation. It is clear from the company records and Mr Deacon’s evidence Ms McMahon’s perception of the matter is incorrect. Ms McMahon had received counselling by Mr Willson who had provided her with instruction as to how she was to conduct herself in similar situations in the future. Whilst I have accepted the evidence of Dysons that Ms McMahon was counselled in relation to this issue, she was dismissed for the conduct that occurred on 4 May 2018 and as such this has not formed part of my consideration as to whether there was a valid reason for her dismissal.
Further, whilst I note the submissions made by Dysons in relation to Ms McMahon’s use of her personal phone, in the absence of evidence of any policy or previous instruction to Ms McMahon directing her not to use her personal phone, I do not consider that this behaviour could amount to a valid reason for dismissal.
It is not in contention that Dysons had received a complaint from the school regarding Ms McMahon’s conduct on 4 May 2018. Ms McMahon does not deny that she picked up Student A and placed him on the bus after she became frustrated with the teacher’s aide who was at the time responsible for the student. However, Ms McMahon maintains the position that her conduct was not unreasonable and did not warrant the termination of her employment.
Ms McMahon’s position description clearly states she is to manage and assist with the boarding and disembarking of students, a matter Ms McMahon does not dispute.[51] Ms McMahon concedes her role and responsibilities commence when the student has boarded the bus and ceases when the student has disembarked. Ms McMahon’s evidence was that she had previously picked children up in circumstances where the parents were present and had at no time been instructed she couldn’t do so. I consider those circumstances to be very different to the incident that occurred on 4 May 2018 for which Ms McMahon was dismissed.
Ms McMahon’s evidence was that she had become frustrated with the situation and I find that she acted on her frustration. Ms McMahon, without consulting the teacher’s aide, stepped off the bus, lifted Student A onto the bus and placed him roughly into the aisle. The CCTV footage shows the pants of Student A, a small child, had fallen down exposing his buttocks at the time Ms McMahon placed him onto the bus. One of the Students who had boarded the bus after Student A pointed out Student A’s pants had come down and requested Ms McMahon pull Student A’s pants up. Whilst the words spoken by Ms McMahon were not necessarily offensive or alarming they were spoken abruptly in a tone I would consider to be more than just firm. The evidence establishes that Ms McMahon’s voice was raised and I consider Dysons to have accurately described the conduct as yelling. I consider that Ms McMahon’s actions are accurately characterised as aggressive, clearly as a direct result of the frustration she was admittedly experiencing.
Ms McMahon said Student A had refused to board the bus and other buses were waiting so she took matters into her own hands. It was unnecessary for Ms McMahon to do so as the CCTV footage is clear in that it shows other students were still arriving at the bus subsequent to Student A being boarded. I consider that Ms McMahon had overstepped the boundaries of her role in that her responsibility for the care of the students commences when they are on the bus. Further to this she showed little respect in her treatment of Student A and showed little to no regard for the role and responsibility of the teacher’s aide.
It is not in contention that Ms McMahon had not attended any training held by the school in relation to her role responsibilities however she had signed the MOU which required her to familiarise herself with Dysons’ policies and procedures. It is also not in contention that the policy Dysons’ relied on for guiding conduct towards students had not recently been provided to Ms McMahon.[52] However I concur with the submission of Mr Deacon and Ms Dickason that, given Ms McMahon’s length of service in her role as Bus Supervisor and the prior counselling she had received for her conduct towards another student in March 2018, Ms McMahon should have been aware that her conduct was unacceptable.
Further, whilst Ms McMahon had not been provided with a policy or procedure that specifically stated how she should treat students in the specific circumstances that occurred, she had significant experience in her role as Bus Supervisor and understood her responsibilities outlined in the position description, the MOU and from the previous counselling she had received regarding conduct of a similar nature. It would be an impossible task for an employer to capture every circumstance or situation that could possibly occur in a policy or procedure document. In this circumstance, it was enough for Dysons to set an expectation that as a general principle Ms McMahon was to treat the students, who were particularly vulnerable given their special needs, with respect. This was a principle she failed to apply due to the frustrations she was experiencing at the time.
The evidence establishes that Ms McMahon clearly understood her role was to supervise the safe delivery of students, a requirement that applied to her own conduct in the way she was required to interact with the students. Ms McMahon refused to accept the views of the teacher’s aide, Mr Willson, Mr Deacon and the human resource representatives that her conduct was aggressive and unacceptable and would not be tolerated by Dysons. If she had turned her mind to considering that her conduct had been perceived by others as aggressive and unacceptable the outcome may have been different. Ms McMahon’s refusal to acknowledge any feedback that her behaviour was unacceptable conduct was detrimental to her continuation of employment. The evidence supports a finding that Ms McMahon’s behaviour in this incident amounted to misconduct, and I therefore find it to have constituted a valid reason for her dismissal.
Notification of the Valid Reason –s.387(b) and an Opportunity to Respond –s.387(c)
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made[53], and in explicit[54] and plain and clear terms.[55] In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
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. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[56]
Ms McMahon submitted that she could not properly respond to the allegations as she was not provided with a copy of the actual complaint made by the school. She also submits a proper investigation was not carried out into the allegations and she was not provided with an adequate opportunity to respond to the allegations.[57]
Ms McMahon’s evidence was that at both the meeting on 10 May and again on 14 May she was provided with the details of the allegations and offered the opportunity to view the CCTV footage, which she declined. Although the Respondent did not provide Ms McMahon with the actual email received from the School it is evident that the details of the complaint were put to Ms McMahon in full and in a manner that was sufficient for her to understand the complaint in order for her to adequately respond. Further, I consider that as Dysons had access to CCTV footage clearly showing the conduct in question Ms McMahon cannot have been disadvantaged by Dysons failure to provide her with a copy of the complaint. There was nothing deficient in the Respondent’s procedure that would suggest the dismissal was procedurally unfair.
Unreasonable Refusal of a Support Person – s.387(d)
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.[58] With respect to this consideration, the Explanatory Memorandum states:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.[59]
Ms McMahon was given the opportunity to have a support person present at the meetings conducted by Dysons. As such, there was no unreasonable refusal for Ms McMahon to have a support person present.
Warnings regarding Unsatisfactory Performance – s.387(e)
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.[60] Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct.[61] The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.[62]
Although Ms McMahon had a prior warning I note that she had contested the validity of that warning. Ms McMahon had also previously been counselled for previous incidences of unacceptable conduct involving her yelling at a student. However Ms McMahon was dismissed for reason of her conduct and not dismissed for unsatisfactory performance. In the circumstances it was not necessary for Ms McMahon to be warned about her conduct in advance of determining the outcome of an investigation or her subsequent dismissal.
Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(g)
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.[63] Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.[64]
Dysons is a reasonably large business and has the benefit of a HR manager with significant practical experience. Dysons did not content that its size impacted on the procedures it followed in effecting the dismissal. This is a neutral consideration in the analysis of whether the dismissal was unfair.
Other Relevant Matters – s.387(h)
Ms McMahon submits that Dysons did not treat her in a good and considerate manner and that she was denied a fair go. She further submits she was treated in a dismissive and disrespectful manner without any regard to her interests, and that her length of service and commitment should have been taken into account and therefore the dismissal was disproportionate to the outcome of the investigation.
The evidence supports Dysons’ submission that there was a pattern of escalating behaviour in that there had been a number of complaints received from the school about similar conduct by Ms McMahon. Dysons cannot be criticised for being concerned about the damage Ms McMahon’s conduct was doing to their relationship with the school. Ms McMahon was of the view that because she had primary care for an individual with special needs she was aware of how she should conduct herself. It was brought to Ms McMahon’s attention that what she does in her personal life was not necessarily the standard accepted at work, and even with the counselling that took place in March and during the disciplinary meetings she attended, Ms McMahon was not open to considering that her conduct was unacceptable.
I am satisfied that Ms McMahon’s conduct was causing damage to the relationship between Dysons and the School and had the potential to cause reputational damage to Dysons. Her failure to acknowledge or even consider that her behaviour was not acceptable brought Dysons to the conclusion that they could not trust Ms McMahon to continue to supervise vulnerable children. Accordingly, whilst Ms McMahon had a significant period of unblemished service with Dysons, on balance I am not satisfied that the dismissal was harsh.
Conclusion
Having considered each of the matters specified in section 387 of the Act, on balance I am satisfied Ms McMahon’s dismissal was not harsh, unjust or unreasonable. Accordingly, I find that Ms McMahon was not unfairly dismissed.
The application is therefore dismissed. An order[65] to that effect will be published with this decision.
COMMISSIONER
Appearances:
G. Dircks for the Applicant;
N. Burmeister for the Respondent.
Hearing details:
2018
Melbourne
28 August
<PR702720>
[1] Exhibit R1, 1-2
[2] Exhibit A2, 3-6
[3] Exhibit A2, 24-26
[4] Form F2
[5] Form F3
[6] Transcript PN206-208
[7] Exhibit A1, 8-10
[8] Exhibit A2, 45
[9] Transcript PN78
[10] Transcript PN79
[11] Exhibit A1, 46-47
[12] Transcript PN80
[13] Transcript PN82
[14] Transcript PN278-290
[15] Transcript PN279
[16] Transcript PN299
[17] Exhibit A1, 52
[18] Transcript PN300-301
[19] Transcript PN315-327
[20] Transcript PN333
[21] Exhibit A1, 53
[22] Transcript PN169-204
[23] Transcript PN205-208
[24] Transcript PN215
[25] Transcript PN216
[26] Transcript PN350-352
[27] Exhibit A1, 63
[28] Exhibit R2, 1-3
[29] Exhibit R2, 16-17
[30] Exhibit R2, 6-8
[31] Exhibit R2, Annexure JD11
[32] Exhibit R2, 39
[33] Exhibit R2, 40
[34] Exhibit R2, 41-50
[35] Exhibit R2, Annexure JD9
[36] Exhibit R3, 12-14
[37] Exhibit R3, 15-18
[38] Exhibit R3, 21
[39] Transcript PN977
[40] Exhibit R3, 24-26
[41] Exhibit R3, 29-39
[42] Transcript PN994
[43] Transcript PN1013
[44] Transcript PN1022
[45] Transcript PN1013
[46] Transcript PN1184
[47] Exhibit R4, 23
[48] Exhibit R4, 21-24
[49] (1995) 185 CLR 410.
[50] Ibid at 465.
[51] Exhibit A1, Annexure LMM2
[52] Transcript PN1286
[53] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]
[54] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151
[55] Previsic v Australian Quarantine Inspection Services Print Q3730
[56] RMIT v Asher (2010) 194 IR 1 at 14-15
[57] Exhibit A2, 41-42; 46
[58] Fair Work Act 2009 (Cth) s.387(d).
[59] Explanatory Memorandum, Fair Work Bill 2009 (Cth) [1542].
[60] Fair Work Act (Cth) s.387(e).
[61] Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
[62] Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie[2012] FWA 2 [58].
[63] Fair Work Act (Cth) s.387(f).
[64] Fair Work Act (Cth) s.387(g).
[65] PR702721
Printed by authority of the Commonwealth Government Printer
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