Lisa Steere v Yarra City Council

[2021] FWC 3781

[2021] FWC 3781

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lisa Steere
v
Yarra City Council
(U2020/16088)

DEPUTY PRESIDENT CLANCY MELBOURNE, 1 JULY 2021

Application for an unfair dismissal remedy – Application dismissed.

[1] On 17 December 2020, Ms Lisa Steere applied to the Commission under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, having been dismissed from her employment with Yarra City Council (Yarra) on 4 December 2020.

[2] Yarra filed a Form F3 Employer Response (Form F3) on 31 December 2020 and when the matter did not settle in a staff conciliation on 18 January 2021, it was allocated to me for determination. My Directions, issued on 21 January 2021, included requirements for the parties to file and serve their Outlines of Argument, statements and documents, with Ms Steere given the opportunity to file any material in reply. A Member Assisted Conciliation conducted on 3 March 2021 did not resolve the matter. An application made by Yarra seeking to have material contained in Ms Steere’s witness statements struck out was not granted and neither was an application made by Ms Steere for an Order for the production of documents. When Ms Steere objected to Yarra’s filing of additional documents on 19 March 2021, I caused an email to be sent to the parties advising that I would deal with any objections to the additional material at the commencement of the hearing. No objection was ultimately pressed. I granted both parties permission to be legally represented and determined that it was appropriate for the factual disputes between them to be resolved through a hearing, which was conducted on 23 March 2021 and 3 and 4 May 2021

[3] Ms Steere gave evidence, as did the following witnesses she called:

•  Mr Ben Stephenson;

•  Ms Kerri Collier;

•  Ms Nicole Hartley;

•  Ms Kylie Surridge; and

•  Mr Jeff Dingli (ASU Organiser).

[4] Yarra’s witness evidence came from the following:

•  Mr James Pratt (Recreation & Leisure Projects Officer);

•  Mr Russell McGregor (Senior Industrial/Employee Relations Adviser);

•  Mr Martin Moran (Operations Co-ordinator);

•  Mr Toby Newman (Co-ordinator of Health & Fitness);

•  Ms Sally Jones (Manager of Recreation & Leisure Services); and

•  Ms Kristina Johnson (Manager of HR Services & Support)).

Background

[5] Ms Steere commenced employment with Yarra in the role of Group Fitness Team Leader on 1 March 2010. Until June 2018, Ms Steere also performed additional work for Yarra taking 10 fitness classes per week as a contractor. From July 2018 she took 2 classes per week as part of her duties as an employee. Ms Steere was responsible for co-ordinating the work of fitness instructors engaged by Yarra across 3 venues. Ms Steere said that until mid-2020, she had 113 fitness instructors reporting to her. Part of Ms Steere’s position objectives were to effectively recruit, train, develop, supervise and mentor staff so as to ensure the timetabling was accurate and effective. Ms Steere’s key responsibilities and duties in this regard included:

•  Ensuring that all group fitness instructors were qualified and that the service delivery and safety of the group fitness program was of a high standard;

•  Ensuring that group fitness staff had current contractor agreement documents, including mandatory qualifications, insurances and training updates; and

•  Training, supervising and motivating the instructors.

[6] Also charged with co-ordinating the delivery of Group Fitness Classes at Yarra Leisure venues, Ms Steere’s duties included:

•  Participating in direct service delivery by personally instructing a minimum of four fitness classes per week;

•  Co-ordinating class instruction and acting as a relief instructor as required and providing relief instructing of classes where the rostered instructor became unavailable and a replacement could not be found.

[7] Ms Steere’s accountabilities included minimising risk to herself and others and supporting safe work practices through adherence to legislative requirements and Council policies and procedures. She was required to be a registered Fitness Leader and hold current first aid qualifications and behave according to “Yarra Values”, which include integrity and accountability.

[8] It is not in dispute that for anyone working as a fitness instructor at Yarra, First Aid registration was to be renewed every 3 years and cardiopulmonary resuscitation (CPR) registration was to be renewed every year. Ms Jones, Manager of Recreation and Leisure Services for Yarra, gave unchallenged evidence:

•  At every Yarra Recreation and Leisure Facility, CPR and First Aid qualifications are a mandatory requirement all staff, including office and administration staff.

•  The two qualifications work hand-in-hand, and are critical for ensuring that all staff are prepared at all times and in all places at Yarra, in order to achieve the following objectives in a “worst case scenario” situation:

•  Save a patron’s life;

•  Increase patient comfort;

•  Prevent incidents worsening; and

•  Stabilise patients until medical assistance arrives.

•  First Aid and CPR qualifications are particularly important in the context of patrons undertaking exercise and strenuous physical activities at Yarra Leisure Centres.

•  First Aid and CPR are of critical importance due to the heightened risk of medical incidents occurring.

•  Yarra measures its success by ensuring 100% staff qualification compliance, as well as keeping an incident register. This is crucial for complying with Council’s duty of care obligations towards patrons and staff and ensures Yarra retains its industry accreditation (Platinum Pools and Fitness Australia).

•  First Aid and CPR qualifications are equally important on the basis that First Aid is early intervention and can be “preventative”, thereby minimising the need to use CPR.

•  The consequences of not maintaining First Aid and CPR qualifications can potentially include patrons not receiving early intervention or appropriate care, Yarra staff being held personally liable for incidents, Yarra losing industry accreditations and Yarra itself being held liable, with all of these possible outcomes presenting a serious and unacceptable risk to Yarra and members of the community.

[9] Prior to June 2019, Ms Steere recorded all instructors’ registrations by the P & O database. She would check and manually update the spreadsheet each month and send written email reminders to any instructor who needed to update their registration. In June 2019, Yarra decided to cease using the P & O system and implement a new system called Deputy. Until

September 2019, Ms Steere continued to use the P & O system. At this time, Mr Newman instructed her to stop using it for qualification reminders.

[10] Ms Steere said that by September 2019, she was feeling overwhelmed with her workload and that she had been raising this with Mr Newman. Ms Steere had a meeting with Mr Newman and Mr Colin McKibbin on 13 September 2019. It would seem the parties to that meeting had different views as to what should have been covered. Ultimately however, it appears to have resulted in Ms Steere being placed on a performance improvement plan (PIP).

[11] On 9 October 2019, Ms Steere attended CPR training facilitated by Yarra. She said she did not attend the First Aid training that was also held that day because she believed that only her CPR required renewal. Ms Steere said that she did not receive a reminder regarding her First Aid either through the Deputy system or CBD College Pty Ltd, the organisation with which she did her First Aid in 2016. The First Aid certificate obtained from CBD College Pty Ltd outlined the recommendation that First Aid be renewed every 3 years.

[12] Mr McGregor sent a letter dated 21 October 2019 to Ms Steere alleging she had failed to find replacement instructors for 3 fitness classes scheduled on 8, 14 and 15 October 2019 and that he and Sally Jones wished to meet with her as part of a formal investigation into those allegations. The ensuing process resulted in Yarra deciding to issue Ms Steere with a first written warning and a PIP. This is turn prompted Ms Steere to file a dispute at the Commission alleging the actions of Yarra were harsh and unreasonable. By 30 March 2020, the dispute was resolved by an agreement reached by the parties, whereby Ms Steere returned to work, the first written warning became a verbal warning to remain in place until October 2020 and Ms Steere was to participate in PIP with her Manager and an independent person from Yarra who had not been involved in the dispute. Ms Steere was absent from work due to stress for the majority of the time whilst those matters were being dealt with, under medical advice and certificates of incapacity.

[13] Ms Steere returned to work in April 2020. Following a meeting held on 5 May 2020 regarding alleged non-attendance at Emergency Management Training, Ms Steere was issued with a letter dated 12 May 2020 which outlined a first written warning.

[14] By this time, COVID-19 was impacting and Yarra’s fitness classes had been suspended due to various restrictions. Ms Steere continued to attend for work for a time before commencing work from home and was involved in the process whereby Yarra transitioned the status of its 113 fitness instructors from contractor to employee.

[15] Ms Steere said she genuinely thought her First Aid was due to be renewed in October 2020 and that she was initially unable to locate any First Aid courses being run. On 21 October 2020, Ms Steere replied to an email from Ms Emily Hadaway, Lifeguard Team Leader at Yarra advertising some imminent First Aid training. Ms Hadaway stated in the email, “I noticed on Deputy your First Aid is expiring.” Ms Steere expressed her interest in attending by emailing Mr Newman and then enrolled in the course. However, Ms Steere subsequently received an email from Mr Newman informing her (on advice from Mr Moran) that she could not do the training as she was not going to be working on site and would need to wait for the next training opportunity after 8 November 2020.

[16] Mr Moran said that on 26 October 2020, he telephoned Mr Newman to advise him that not all places in the First Aid course had been filled and that the Operations team were looking for staff who could attend. He also said that when he had reviewed Ms Steere’s qualification on Deputy to check whether she still needed to update her training, he noticed that the training date and the expiry date were four years apart. Mr Moran said that he considered this very odd because First Aid qualifications must be updated every three years. Mr Moran had also opened the attached qualification document in Deputy and found it had a different expiry date to the one that was listed in Deputy. Mr Moran subsequently notified Mr Newman of his concerns and asked him if he was aware of the discrepancy in Ms Steere’s qualification expiry dates. Mr Newman said he told Mr Moran he was not aware of any issues but would investigate. Mr Newman advised Ms Jones of the discrepancy and he emailed her advising that Ms Steere’s First Aid certificate was over a year out of date, having expired on 3 October 2019. He added:

“Lisa however has completed her yearly CPR course on the 9th of October 2019 (see attached) so I am unsure why she would not have completed her First Aid. When the First Aid document has been uploaded to deputy it would appear that a 4 year expiry date (instead of 3 years) has been given so Lisa would not have been alerted to it being out of date by the system…”

[17] Mr Newman was directed by Ms Jones to check and confirm and with the assistance of Mr Pratt, it was established:

•  Mr Pratt had established Ms Steere’s profile in deputy in May 2019 as part of the set-up of the Deputy System and had set the expiry date for the First Aid as 3 October 2019;

•  Ms Steere’s First Aid certificate outlining that her qualification was issued on 3 October 2016 was uploaded to Deputy on 14 August 2019 by Ms Lara Vinhas-Perkins;

•  At 3.10pm on 15 October 2019, Ms Steere herself logged in and adjusted the expiry date of her First Aid to 3 October 2020.

[18] There were also records in Deputy suggesting that Ms Steere had created a number of shifts for herself which raised the question of whether she had taken group fitness classes while not holding a valid First Aid qualification. Mr Newman notified Ms Jones in relation to all these matters on 29 October 2020.

[19] It is also apparent that on 15 October 2019, Ms Steere also updated the expiry date of her CPR to 9 October 2020 and uploaded her CPR certificate that records a completion date of 9 October 2019 and validity of 1 year.

[20] On 30 October 2020, a letter was sent to Ms Steere’s work email address by Ms Jones notifying her that a formal investigation had been initiated with respect to the following:

•  Ms Steere’s First Aid qualification had expired on 3 October 2019, and she failed to renew the qualification before it expired;

•  Ms Steere continued to perform her role, including instructing Group Fitness classes, without a valid First Aid Qualification from 4 October 2019;

•  Ms Steere failed to inform any member of management that her First Aid qualification had lapsed;

•  Ms Steere had failed to adequately follow up on automatic reminders that were generated by Deputy at 90, 60 and 30 days before her qualification expired;

•  Ms Steere changed the expiry dates of her First Aid qualification from the nominal expiry date of 3 October 2019 to the new expiry date of 3 October 2020; and

•  The change of the expiry date was intentional conduct to divert attention that her qualification was out-of-date.

[21] These allegations were repeated in an email sent to Ms Steere by Ms Johnson on 6 November 2020, to which Ms Steere responded later on the same day. Meetings took place on 11 November 2020 and 24 November 2020, at which Ms Steere’s solicitor was in attendance as her support person. Ms Steere was provided with a letter from Yarra at the latter meeting outlining Yarra’s findings and inviting her to make a submission to the Chief Executive Officer to “show cause” why she should not be terminated. Ms Steere exercised this option, providing a letter dated 30 November 2020.

[22] The Chief Executive Officer of Yarra responded with a letter dated 4 December 2020 in which she outlined that she had determined the allegations outlined in the letter dated 30 October 2020 had been substantiated and represented serious breaches by Ms Steere of her employment obligations, as follows:

•  Serious misconduct, as contemplated by the Council’s Staff Code of Conduct and the Yarra City Council Enterprise Agreement 2017 – 2020.

•  Conduct which is contrary to and inconsistent with Yarra’s Values, as set out in the Staff Code of Conduct.

•  Serious breaches of the Council’s Fraud and Corruption Policy and Procedure.

•  Serious breaches of the Staff Training & Qualification @ Yarra Leisure.

•  Conduct which is destructive of the mutual trust and confidence which an employer and employee must have in each other.

•  Conduct which is inconsistent with the continuation of the employment relationship.

[23] The Chief Executive Officer of Yarra then outlined she had come to the following conclusions:

•  Ms Steere’s changing of the expiry dates of her First Aid qualification from the nominal expiry date of 3 October 2019 to the expiry date of 3 October 2020 justified summary dismissal.

•  Ms Steere’s continuing to perform her role, including conducting Group Fitness Classes, without valid First Aid and CPR qualifications would also justify summary dismissal.

•  Ms Steere’s failure to renew her First Aid and CPR qualifications prior to their effective expiry dates would not, on its own, justify termination. However, it demonstrated a blatant disregard of her obligations to keep these qualifications up-to-date, notwithstanding the automatic reminders that she would have received in the Deputy system at 90, 60, 30 days etc. and demonstrated a pattern of unacceptable behaviour of her part.

•  Ms Steere’s failure to inform any member of management in relation to her First Aid and CPR qualifications lapsing, would not of itself justify dismissal, but demonstrated a lack of responsibility, accountability and a pattern of unacceptable behaviour of her part.

[24] The 4 December 2020 letter advised Ms Steere her employment would be terminated with immediate effect. Only outstanding wages and accrued leave entitlements were paid.

Initial matters to be considered

[25] There is no dispute between the parties, and I am satisfied, in relation to the four matters referred to in ss.396(a)-(d) of the Act, as follows.

[26] Firstly, Ms Steele’s application was made within the 21-day period after the dismissal took effect, as required by s.394(2) of the Act (s.396(a) of the Act).

[27] Secondly, there is no dispute that Ms Steere is a person protected from unfair dismissal as defined by s.382 of the Act in that she is an employee who has completed a period of employment of at least the minimum employment period, and the sum of her annual rate of earnings and such other amounts is less than the high income threshold (s.396(b) of the Act).

[28] Thirdly, as to whether this matter involves a dismissal that was consistent with the Small Business Fair Dismissal Code (s.396(c) of the Act), it was not in dispute and I am satisfied that the Respondent is not a small business employer within the meaning of s.23 of the Act, having had 15 or more employees at the relevant time. As such, I am satisfied that the Small Business Fair Dismissal Code does not apply.

[29] Fourthly, neither party suggested this case involves a dispute as to whether or not the circumstances involved a genuine redundancy and I find this to be the case (s.396(d)) of the Act).

Section 385 – was Steere’s dismissal unfair?

[30] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed.

[31] Section 385 of the Act outlines the meaning of “unfair dismissal”:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

Section 385(a) – Was Steere dismissed?

[32] There was no dispute, and I am satisfied, that Ms Steere was dismissed within the meaning of s.386(1) of the Act.

Section 385(c) – Small Business Fair Dismissal Code

[33] As outlined in paragraph [28] above, s.385(c) of the Act does not apply.

Section 385(d) – Genuine redundancy

[34] As outlined in paragraph [29] above, s.385(d) of the Act does not apply.

Section 385(b) – Harsh, unjust or unreasonable

[35] The criteria I must take into account when required to assess whether a dismissal was harsh, unjust or unreasonable, within the meaning of s.385(b) of the Act, are set out in s.387 of the Act.

[36] Section 387 of the Act sets out the considerations

“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.”

[37] I am under a duty to consider each of these criteria in reaching my conclusion and will do so below. 1

Was there a valid reason for dismissal relating to Ms Steere’s capacity or conduct? (s.387(a))

[38] In considering whether the dismissal of Ms Steere was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to her capacity or conduct (including its effect on the safety and welfare of other employees). The reason or reasons should be “sound, defensible and well founded” 2 and should not be “capricious, fanciful, spiteful or prejudiced”.3

[39] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 4 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).

[40] Ms Steere’s initial response to the allegations outlined in the Yarra letter dated 30 October 2020 was conveyed via email dated 6 November 2020. It included that she had been suffering from mental health issues and these had coincided with her failing to renew her First Aid qualifications. She stated she had come to understand that it had expired on 3 October 2019 but at the time she had mistakenly thought it was valid. Ms Steere also stated she had continued to perform her role after 4 October 2019 without a valid First Aid qualification but that she had erroneously believed that it was valid. She said she did not inform management because she was not aware that her First Aid had expired and had not received any reminders regarding qualifications. Ms Steere stated she had not changed the date of her First Aid qualification and had been open and transparent with management in all interactions. Ms Steere apologised.

[41] The letter dated 30 November 2020 sent by Ms Steere’s lawyer outlined:

•  Allegations of investigation bias;

•  There was no evidence that the Deputy system sent reminders at 60 and 90 and 120 day increments;

•  Ms Steere deleted the blocks for all staff whose qualifications expired within three months of her setting the roster so as to enable her to plot out the schedule of fitness instructors for the ensuing 3 months;

•  Ms Steere believed her First Aid had expired in or around the first week of October 2020 and was very public about it;

•  Due to COVID-19 Ms Steere was not able to attend a First Aid Course to renew her qualification;

•  Ms Steere was not taking any classes, and had not taken any classes since December 2019 and so believed there was no immediate need to renew her First Aid qualification;

•  The fact that Ms Steere sought to enrol in a First Aid Course prior to being informed of her expired First Aid Certificate, together with her conversations with Ms Hadaway, Mr Moran and Mr Newman affirm that Ms Steere was under the mistaken belief her First Aid was valid up until the first week in October 2020;

•  Mistaken belief is not serious misconduct nor is it fraud;

•  Ms Steere changed the date of her First Aid qualification on 15 October 2020 thinking that it was her CPR. As such, it made no sense why, on 15 October 2020, Ms Steere would change the date of her First Aid Qualification expiry to an already expired date of 3 October 2020. It was clearly an error which is not wilful or deliberate behaviour;

•  Ms Steere taught 5 classes without a valid First Aid Training Certificate but due to COVID-19, the last class she in fact taught was 10 December 2019;

•  While this was an error and it should not have occurred, it did not result in serious and imminent risk to health and safety of the reputation, viability of profitability of the City of Yarra;

•  there was no actual evidence that Ms Steere’s failure to renew her First Aid qualification was deliberate or fraudulent;

[42] In her statement, 5 Ms Steere outlined that she believed that only her CPR required renewal and that she did not receive a reminder regarding her First Aid either through the Deputy system or CBD College Pty Ltd, the organisation with which she did her First Aid in 2016. Ms Steere said she genuinely thought her First Aid was due to be renewed in October 2020. Further, Ms Steere stated she, at most, taught 4 classes without her First Aid Certificate and while she had updated her CPR registration, she did not update her First Aid registration because she had not yet done the course. In the alternative, Ms Steere stated that if she did change the First Aid registration date, it was by mistake and without fraudulent intent.

[43] In her reply statement, 6 Ms Steere denied intentionally going into the Deputy system on 15 October 2019 and knowingly changing the date of her First Aid renewal to 3 October 2020. Ms Steere suggested she may have accidentally done so while uploading her CPR Certificate renewal.

[44] In her Outline of Argument dated 8 February 2021, it is acknowledged that Ms Steere should have kept her First Aid registration up to date and that both her First Aid registration and her CPR registration were due to be renewed in October 2019. It is submitted that because of the failure of Yarra’s Deputy system, Ms Steere inadvertently did not renew the First Aid registration and did not discover her mistake until after she had attempted to renew her First Aid in October 2020. Any suggestion that Ms Steere falsified records was denied.

[45] At the Hearing, Ms Steere gave evidence that she did not forget to update her First Aid in October 2019 but was just under the impression that only her CPR required updating at that time. Despite giving evidence that she knew that her CPR and First Aid qualifications expired in October on dates close together and that her First Aid expired every 3 years, Ms Steere said that she only realised her First Aid actually expired on 3 October 2019 when told by Ms Jones. Ms Steere said that she never received the 30, 60 and 90-day reminders of her First Aid qualification expiring on 3 October 2019 and nor, despite her training on the Deputy system, was she aware that Deputy had the capacity to send these reminders.

[46] Ms Steere’s evidence at the hearing was, variously, that she had no recollection of taking a fitness class on 8 October 2019, that it was more than likely she would have done that class and that if she did take that class, she apologised but she found it difficult to believe that she did take that class. 7 As regards taking a class on 15 October 2019, Ms Steere said:

“Well, this is what I was trying to say to you before. I have no recollection of that so it’s really difficult to say whether I did or I didn’t because it was such a busy time, there was a lot of my classes I didn’t take because of my workload. I might have been rostered on for it, I don’t know whether I was rostered on for that or the class was just left blank and there’s no way of knowing that so it’s difficult for me to say whether I did do that class” 8

[47] Ultimately, Ms Steere gave the following evidence:

“Ms Steere, it has been put to you that you took your regular classes 8 October 2019, 15 October 2019, 12 November 2019, 3 December 2019 and 10 December 2019. You took those classes without having a first aid qualification. Is that correct or not?

Well, it is now, but at the time I wouldn’t have known that.” 9

[48] Ms Steere’s explanations as to how her First Aid qualification expiry date was changed to 3 October 2020 were:

•  “whether I have uploaded it [CPR qualification] and gone ahead and uploaded it twice thinking that I, you know, I knew it was my - it was updated for a year and I’ve updated it, that’s the only thing that I can reconcile how on earth that happened and as I’ve said all along if that is the case, you know I admit to making a error but it was a honest mistake…”; 10

•  “All right. But you know that if you update your qualifications in Deputy you have to actually upload the certificate as well so how is it that you could have uploaded - so that you could have updated or changed the qualification date of your first aid expiry without actually uploading the first aid certificate training - the training certificate?   -

Yes. The only thing I can think of is that I thought that I’d uploaded it but when I’ve had a look at it, it had - it was still with - like it wasn’t - it hadn’t changed colour so I’d gone in and just changed the date, that’s the only thing that I can think that could have - the way it could’ve happened.”; 11

•  That she thought she had already uploaded the certificate and so just changed the date; 12

•  “Yes. But surely you would have changed - if you made - if you got mixed up between the CPR and the first aid qualification you would have changed the first aid qualification to 9 October not 3 October which was your first aid qualification expiry date, but they’ve got two different expiry dates?

Well, it’s - whatever expiry date was on the Deputy it would’ve been a year from that date. I would - it would have been a year from that date.” 13

•  She no recollection of what occurred on 15 October 2019, could not believe what happened and was just trying to find a way to figure out how on earth it had happened; 14

[49] Counsel for Ms Steere acknowledged that Ms Steere was in the Deputy system on 15 October to update her CPR qualification but submitted that I cannot be 100 per cent sure that it was Ms Steere who updated the First Aid on the same date. Counsel highlighted the dates on the CPR and First Aid are not the same, and that there was no CPR qualification certificate uploaded to the entry for the First Aid. Counsel submits that neither the test in Briginshaw nor the requirements in Yarra’s policies for a finding of fraudulent behaviour have been met.

[50] Counsel also submitted in respect of the amendment of Ms Steere’s First Aid qualification expiry date on 15 October 2019, that it was an error and how it happened is unclear. It was submitted Ms Steere had no explanation for how it happened but acknowledged that she was logged into the Deputy system on that day to update her CPR qualification. Counsel conceded that it could be ‘very likely’ Ms Steere changed the first aid qualification date but submitted it is not conclusive that she did. It was submitted that Ms Steere did not attempt to upload a certificate in support of the first aid qualification and that if she did intend to update the first aid qualification date, then she would have uploaded a document as well. It was put that Ms Steere did not have an intention to engage in fraudulent conduct and there is no evidence to establish that proposition.

[51] Counsel for Ms Steere also appeared to advance an alternative submission that Ms Steere’s conduct on 15 October 2019, in changing the date of her first aid qualification expiry, was a mistake. 15 Counsel submits that there was “…a very unacceptable change, but it is not dishonest and it is not fraudulent…” and that “there can be no proof … the questions of dishonesty and fraudulence are elevated to the sort of tests that are in the Briginshaw test”.16 It was submitted there can be a number of reasons for the mistake, however there was no evidence of an intention to engage in fraudulent conduct.17 Counsel acknowledged that Ms Steere knew the ‘very strict’ rules in respect of keeping qualifications up to date, but that the issue is “…all the corollaries that flowed from [Ms Steere’s] inability to properly handle the Deputy system at the time, she was seeking assistance with it and she’s put wrong data in…”18

[52] Ms Steere gave evidence Mr Toby Newman instructed her to stop using her P&O system in September 2019 and to instead use Deputy. Counsel appeared to invite me to make a finding that Ms Steere’s failure to renew her First Aid qualification was the result of a combination of that instruction and what were said to be the failings of Deputy.

[53] In cases such as this that involve allegations of misconduct, the Commission must make a finding on the evidence provided as to whether, on the balance of probabilities, the conduct occurred. 19 It is not enough for Yarra to establish that it had a reasonable belief that Ms Steere’s termination was for a valid reason.20 In Gelagotis v Esso Australia Pty Ltd and Hatwell v Esso Australia Pty Ltd,21 it was noted by Deputy President Colman:

“[69] Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities. However, as the High Court noted in Briginshaw, 22 the nature of the relevant issue necessarily affects the ‘process by which reasonable satisfaction is attained’23 and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’24 or ‘circumstances pointing with a wavering finger to an affirmative conclusion’.25 The application of the Briginshaw standard means that the Commission should not lightly make a finding that an employee engaged in the misconduct alleged.26

[70] The rule in Briginshaw has elsewhere been described as reflectinga conventional presumption that members of society do not ordinarily engage in fraudulent or criminal behaviour. 27 In Greyhound Racing Authority, Santow JA noted:

‘… The notion of “inexact proof, and indefinite testimony or indirect inferences” needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by [a Tribunal]’. 28

[71]The ‘level of comfort’ referred to means that the finder of fact must ‘feel an actual persuasion of the occurrence or existence of the fact in issue’; the ‘mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact. 29“.

[54] As was held by Santow JA in Greyhound Racing Authority (NSW) v Bragg, 30the Briginshaw standard requires inferences to be reached upon a comfortable level of persuasion, commensurate with the gravity of what is alleged.

[55] On 5 May 2021, Yarra produced Certification records that indicate that on 15 October 2019, Ms Steere recorded entries for both her CPR and First Aid qualifications and in the case of the latter, the expiry date was changed from 3 October 2019 to 3 October 2020. Neither party took up my invitation to make any submissions in relation to these records.

[56] Ms Steere initially stated on 6 November 2020 that she had not changed the expiry date of her First Aid qualification from the nominal expiry date of 3 October 2019 to the expiry date of 3 October 2020 and claimed she had been open and transparent with management in all interactions. She then asserted in the letter dated 30 November 2020 that she changed the date of her First Aid qualification on 15 October 2020, thinking that it was her CPR. From this, her position changed and in her first statement she said that while she had updated her CPR registration, she did not update her First Aid registration because she had not yet done the course. In the alternative, she stated that if she did change the First Aid registration date, it was by mistake and without fraudulent intent. In her reply statement, Ms Steere denied intentionally going into the Deputy system on 15 October 2019 and knowingly changing the date of her First Aid renewal to 3 October 2020, suggesting instead that she may have accidentally done so while uploading her CPR Certificate renewal. In her Outline of Argument, Ms Steere maintained her denial and at the hearing, she proffered a variety of explanations as to how her First Aid qualification expiry date was changed to 3 October 2020 before stating she had no recollection of what occurred on 15 October 2019 and could not believe what had happened. Ms Steere’s Counsel conceded that it could be ‘very likely’ she changed the first aid qualification date but submitted it is not conclusive that she had, while also submitting that changing the date of her first aid qualification expiry was a mistake.

[57] Ms Steere did not provide a consistent version of events. She was not a convincing witness. At its highest, her case is that the changing of the expiry date of her First Aid qualification to 3 October 2020 was a mistake. However, I am comfortably satisfied, on the balance of probabilities to the Briginshaw standard that on 15 October 2019, Ms Steere changed the expiry date of her First Aid qualification to 3 October 2020 and that this was not a mistake. My reasons for reaching this conclusion are:

•  At every Yarra Recreation and Leisure Facility, CPR and First Aid qualifications are a mandatory requirement all Yarra staff. In particular, Ms Steere was required to be a registered Fitness Leader with current first aid qualifications.

•  Ms Steere was the Group Fitness Team Leader with responsibility for recording all instructors’ registrations and qualifications and ensuring, for rostering purposes, that these were current. Ms Steere set the timetables and rosters and was responsible for ensuring that scheduled classes ran properly.

•  On 1 October 2019, an attempt to roster Ms Steere to take a Body Balance class on 8 October 2019 raised a “Problem” in Deputy described as “Could not copy Lisa Steere. Problem: Not trained in CPR Certification. Not Trained in First Aid…” 31 The “Problem” arising on 1 October 2019 was that on 8 October 2019, Ms Steere’s then CPR qualifications and First Aid qualifications (with expiry dates of 2 October 2019 and 3 October 2019 respectively, as per the Certification records produced to me on 5 May 2021) would not be current.

•  Ms Steere set the rosters and timetable and the Body Balance Class on 8 October 2019 was one of her regularly rostered classes, as was a class on 15 October 2019. 32

•  Ms Steere completed CPR training on 9 October 2019.

•  The Yarra Certification records from Deputy produced to me on 5 May 2021 indicate that on 15 October 2019, Ms Steere made entries for both her CPR and First Aid qualifications;

•  When updating the CPR qualification, which was not denied, Ms Steere recorded the correct, new expiry date of 9 October 2020 and uploaded her CPR certificate, 33 which detailed validity of one year from the 9 October 2019 completion date;

•  If Ms Steere had indeed mistakenly updated her First Aid entry thinking she was updating her CPR qualification, one might have reasonably expected her to have recorded the CPR expiry date of 9 October 2020 (not 3 October 2020) and to have uploaded her CPR certificate, however this did not occur;

•  The expiry date of Ms Steere’s First Aid qualification was changed to 3 October 2020 and even if Ms Steere did this by mistake, believing she was updating her CPR entry, this entry bore no resemblance to the date upon which she had completed her CPR training (9 October 2019).

•  The First Aid qualification entry updated on 15 October 2019 had the same expiry day and month (3 October) but an extra 12 months’ duration, to 3 October 2020.

[58] In changing the expiry date of her First Aid qualification from 3 October 2019 to the expiry date of 3 October 2020, Ms Steere made an entry that indicated she had a current First Aid qualification when this was not the case. The entry she made inferred that Ms Steere was eligible to continue taking Group Fitness classes when she was not. I am satisfied Ms Steere’s actions on 15 October 2019 constitute a valid reason for dismissal.

[59] Despite appearing to accept throughout the investigation phase and much of this proceeding that she had continued to perform her role, which included conducting Group Fitness Classes, without a valid First Aid qualification, Ms Steere then appeared to retreat from this position when giving her evidence before ultimately stating that if she had done so, it was without knowing. For the reasons outlined above, I am not persuaded this was the case.

[60] While Ms Steere submitted that there were no actual consequences as a result of her having taken Group Fitness Classes without up-to-date First Aid and/or CPR qualifications, I am satisfied that having done so, there was a valid reason for her dismissal. I accept that Ms Steere exposed Yarra to the potentially serious and unacceptable risks of patrons not receiving early intervention or appropriate care, Yarra staff being held personally liable for incidents, Yarra losing industry accreditations and Yarra itself being held liable. To have done so was unacceptable from someone holding a leadership position with responsibility for keeping current and accurate records of the qualifications of all Fitness Instructors. Further, such exposure to risk was completely avoidable.

[61] I am therefore satisfied there was a valid reason for Ms Steere’s dismissal based on her having changed the expiry date of her First Aid qualification from 3 October 2019 to 3 October 2020 and due to her having taken Group Fitness Classes in late 2019 without up-to-date First Aid qualifications.

Notification of the valid reason – s.387(b)

[62] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 34 in explicit terms,35 and in plain and clear terms.36 In Crozier v Palazzo Corporation Pty Ltd37 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their 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.”

[63] Having regard to the correspondence that passed between the parties and the discussions held, I am satisfied Ms Steere was notified of the reason for her dismissal and as such, this is a neutral consideration.

Opportunity to respond to any reason related to capacity or conduct – s.387(c)

[64] Ordinarily, an employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. 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. 38

[65] I am satisfied Ms Steere was provided with the opportunity to provide verbal and written responses to the allegations against her. She also had the opportunity to submit a “show cause” letter as to why her employment should not be terminated.

Unreasonable refusal by the employer to allow a support person – s.387(d)

[66] There was no unreasonable refusal to allow Ms Steere a support person in this matter and as such, I find this consideration a neutral one.

Warnings regarding unsatisfactory performance – s.387(e)

[67] As Ms Steere was not terminated on the basis of unsatisfactory performance, this factor is not a relevant consideration

Impact of the size of the Respondent on procedures followed – s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)

[68] I do not consider the size of Yarra to have been a relevant factor in this case (s.387(f)) and have noted that it has an in-house human resources, industrial relations and employment relations specialists, such that s.387(g) of the Act does not apply.

Other relevant matters – s.387(h)

[69] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[70] Ms Steere was highly critical of the role played by Ms Jones, accusing her of being prejudiced against her and intent on terminating her employment. Ms Steere submitted that Ms Jones should not have been both investigator and decision maker and criticised her for the role she had played in a previous dispute before the Commission (see above at paragraph [12]). Ms Steere asserted Ms Jones was the overseer of the implementation of Deputy, criticised her as having done a very poor job of this and accused Ms Jones of being “out to get” her.

[71] Having observed Ms Jones giving evidence, I do not accept this critique of her and the role she played. Ms Jones was not the ultimate decision maker and did not make the decision to terminate the employment of Ms Steere. I have concluded above that I am satisfied Ms Steere was notified of the reason for her dismissal and was afforded the opportunity to respond. As regards the earlier dispute before the Commission, Ms Jones was not the Respondent, the outcome was an agreed one negotiated by the parties and it mandated that Ms Jones was not to be involved in the implementation of the resultant PIP, which itself became disrupted by the impact of COVID-19. The suggestion that Ms Jones had, as the investigator, an opportunity to cover up her own failures in managing the implementation of the Deputy system lacks merit given that Deputy was launched on 22 July 2019 and Ms Jones commenced as an employee of Yarra on 29 July 2019. Finally, I do not consider the fact that Ms Steere was issued a warning for non-attendance at mandatory Emergency Management Training upon her return to work in May 2020 has any relevance to the determination of whether her dismissal was unfair.

[72] I have noted Ms Steere’s submission that her termination was harsh because she is now unemployed, without income and there are limited employment prospects in the fitness industry due to the impact of COVID-19. I have also noted the submission that she was a reliable employee of Yarra for over 10 years.

[73] Clearly Ms Steere struggled with the Deputy system but I do not accept the submission that her termination was unjust because Yarra failed to acknowledge her difficulties with Deputy or to provide her with support. I note Ms Steere attended a presentation on the Deputy system for management on 14 May 2019, a training session on 22 May 2019 and received not insignificant one-on-one training from Mr Pratt during the course of 2019. Ms Steere also directed much criticism towards the functionality of the Deputy system. In this regard, I have noted that while some witnesses gave evidence of not receiving alerts on Deputy, others said they had received them. I have also noted following evidence of Mr Moran, which was not challenged:

“MR KATZ: As the commission pleases. Mr Moran, I have just got one question for you. There is an allegation that has been made in a reply witness statement by Ms Steere with regard to an increased workload as a result of Deputy’s introduction. What is your comment to that?  -It’s decreased our workload in the operations team, quite substantially.

Can you elaborate?  -Yes.

Can you elaborate?  -Yes. So we’ve got almost 170 staff, who probably have around four to five qualifications per person. It automates, particularly with their qualifications, a expiry date. And previous to Deputy, we were having to manually go through every single qualification to monitor those expiry dates. This automates it, quite simply.

What about the rostering of staff?  -Rostering, basically it enables you to monitor the roster in a way where people without qualifications are highlighted and you can take action. So it’s taken away the manual component of rostering.” 39

[74] Ultimately, I am not persuaded the Deputy System impacted on either Ms Steere’s specific actions on 15 October 2019 or her subsequent actions in taking Group Fitness classes while not holding the required First Aid qualification.

[75] Ms Steere also raised issues of mental health and workplace stress and attached to her statement a letter from Dr Fleur Dwyer dated 11 March 2021. 40 Dr Dwyer’s letter appears to suggest that Ms Steere was feeling stressed and anxious due to her work situation from as early as October 2017, which was well before the introduction of the Deputy system. It also records feelings of stress and anxiety due to work in October 2019. However, Dr Dwyer did not give evidence. I am not persuaded by her letter that issues of mental health and workplace stress explain Ms Steere’s specific actions on 15 October 2019 or her subsequent actions in taking Group Fitness classes while not holding the required First Aid qualification either.

[76] Finally, Ms Steere submitted her termination was unreasonable because there was no proper well-founded reason.

[77] Yarra submitted that Ms Steere’s summary dismissal was a proportionate response to the circumstances. It submitted that Ms Steere has at no stage admitted that her actions in changing the expiry date for her First Aid qualifications were deliberate and/or dishonest. Further, it submitted that Ms Steere has also failed to show any contrition or remorse for the actions which resulted in the termination of her employment. Yarra submitted the finding should be made that the seriousness of the Ms Steere’s actions, allied with the fact that she did not have a “clean” disciplinary record, outweigh the mitigating factors of her age, length of service and potential difficulty obtaining suitable alternative employment.

[78] I accept that the dismissal has had a negative impact on Ms Steere but I do not find that the matters raised by Ms Steere as part of the consideration of s.387(h) are sufficient to render her dismissal harsh, unjust or unreasonable. Having regard to all the circumstances of this case, I am satisfied Ms Steere’s summary dismissal was a proportionate response to her conduct on 15 October 2019 in altering her qualification records and her subsequent taking of Group Fitness classes in late 2019 whilst not holding a First Aid qualification. As part of her leadership position, Ms Steere was responsible for ensuring the registration and qualifications of Yarra Fitness Instructors were current and accurately recorded. She set the timetables and rosters and was responsible for ensuring that scheduled classes ran properly. As a leader, it was incumbent upon Ms Steere to ensure that all group fitness instructors, including herself, were qualified. Ms Steere did not meet these various obligations. Ms Steere also had an obligation not to mislead Yarra and yet she made an entry that indicated she had a current First Aid qualification when this was not the case. By then going on to take the Group Fitness classes, Ms Steere exposed Yarra to the potentially serious and unacceptable risks of patrons not receiving early intervention or appropriate care, Yarra staff being held personally liable for incidents, Yarra losing industry accreditations and Yarra itself being held liable.

Conclusion

[79] Having considered each of the matters specified in s.387 of the Act, I am satisfied the dismissal of Ms Steere was not harsh, unjust or unreasonable.

[80] Accordingly, I find that Ms Steere’s dismissal was not unfair. Ms Steere’s application for unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

G Jardine of Counsel on behalf of Ms Steere.
G Katz, Solicitor, on behalf of Yarra City Council.

Hearing details:

2021.
Melbourne:
March 23 (via Microsoft Teams), May 3-4.

Printed by authority of the Commonwealth Government Printer

PR731199

 1   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498.

 2   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 3   Ibid.

 4   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.

 5   Exhibit A1.

 6   Exhibit A2.

 7   Transcript, 23 March 2021 at PN486, 493-494 and 505.

 8   Transcript, 23 March 2021 at PN758.

 9   Transcript, 23 March 2021 at PN819.

 10   Transcript, 23 March 2021 at PN730.

 11   Transcript, 23 March 2021 at PN731.

 12   Transcript, 23 March 2021 at PN732.

 13   Transcript, 23 March 2021 at PN733.

 14   Transcript, 23 March 2021 at PN734.

 15   Transcript, 4 May 2021 at PN2324-PN2325.

 16   Transcript, 4 May 2021 at PN2376 – PN2377.

 17   Transcript, 4 May 2021 at PN2326.

 18   Transcript, 4 May 2021 at PN2328.

 19   Edwards v Giudice (1999) 94 FCR 561, at 564; King v Freshmore (Vic) Pty Ltd , AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000, Print S4213 [24].

 20   Ibid.

 21   [2018] FWC 2398.

 22   Briginshaw v Briginshaw (1938) 60 CLR 336.

 23   Ibid at 363.

 24   Ibid per Dixon J at 362.

 25   Ibid per Rich J at 350.

 26   Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J.

 27   Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450.

 28   Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388, [35]; approved in Karakatsanis v Racing Victoria Ltd (2013) 306 ALR 125 at [35] - [37].

 29   NOM v Director of Public Prosecutions (2012) 38 VR 618, [124].

 30 [2003] NSWCA 388.

 31   Exhibit R1, Attachment JP-16, DCB at p.240.

 32   DCB at p.316 at [11]- [13] and Transcript, 4 May 2021 at PN1869.

 33   DCB at p.341.

 34   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 35   Previsic v Australian Quarantine Inspection Services (AIRC, Holmes C, 6 October 1998), Dec 907/98 M Print Q3730.

 36   Ibid.

 37 (2000) 98 IR 137, 151.

 38   RMIT v Asher (2010) 194 IR 1, 14-15.

 39   Transcript, 3 May 2021 at PN1124-PN1127.

 40   DCB at p.703.