Maria Pintabona v Evertop Investments T/A Jim Kidd Sports

[2015] FWC 3312

[2015] FWC 3312

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maria Pintabona
v
Evertop Investments T/A Jim Kidd Sports
(U2014/12278)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 21 MAY 2015

Application for relief from unfair dismissal - summary dismissal - untruthfulness - valid reason.

[1] On 5 September 2014 Mrs Pintabona lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), in relation to the termination of her employment with Evertop Investments Pty Ltd T/A Jim Kidd Sports (JKS). This application was referred to me for determination on 8 April 2015 and was the subject of a hearing in Perth on 13 May 2015. Written closing submissions were received from Mrs Pintabona on 15 May 2015.

[2] At this hearing Mrs Pintabona was represented by Mr McCorry, as agent and JKS was represented by Mr Crommelin of Crowe Horwath, as agent, pursuant to grants of permission made under s.596(2)(a) of the FW Act. Both parties consented to permission being granted on this basis and I was satisfied that it would enable the matter to be dealt with more efficiently. I note that Mr Crommelin was actively involved in the JKS decision to terminate Mrs Pintabona's employment and was also a witness in the matter.

[3] There are no issues of a jurisdictional or initial nature associated with Mrs Pintabona's application.

[4] In brief summary terms, Mrs Pintabona was engaged by JKS in March 2012. She undertook clerical and accounting duties. JKS operates a retail sports goods business and Mrs Pintabona worked from its head office which included a warehouse or distribution centre. There were no warnings or performance issues associated with her employment. The termination of her employment followed an investigation into whether she had lied to JKS management. Mrs Pintabona asserts that she had not lied and that she was not treated fairly in the dismissal process.

[5] JKS asserts that the termination of Mrs Pintabona’s employment was substantively and procedurally fair.

[6] In reaching a conclusion in this matter I have taken all of the evidence before me into account. I have very briefly summarised the witness evidence in a non-exhaustive manner.

[7] Mrs Pintabona's evidence went to her employment with JKS, and to the events that led to the termination of her employment. At the time of the termination of Mrs Pintabona, her evidence went to her concerns with her work environment and with the manner of her treatment by the management of JKS.

[8] Mr Harvey is a former employee of JKS. At the time he telephoned Ms Pintabona on 17 July 2014, he was suspended and I have taken it that he was negotiating a severance payment from KJS. His evidence in this matter went to the manner of his contact with Mrs Pintabona in July 2014 and the extent to which she did not disclose or provide inappropriate information to him. Mr Harvey also detailed his concerns about the manner in which KJS operated in correspondence attached to Mrs Pintabona's witness statement. 1

[9] Mr Kidd is the Director of JKS. His evidence went to the actions he took to investigate a complaint made by Mrs Pintabona and to investigate concerns about her behaviour after Ms Shu Jing Li alerted him to the possibility that Mrs Pintabona was untruthful in advising her, on 17 July 2014, that she had not been talking to Mr Harvey on the telephone. Mr Kidd made the termination of employment decision on the basis of that investigation. I note that, in the course of the proceedings, Mr McCorry expressed concern that Mr Kidd had approached Mrs Pintabona about the content of Mr Harvey's Facebook page. I am not satisfied that this concern affects the evidence before me in this matter, or, that it is appropriate that I comment on what appears to be ongoing ill-will between Mr Kidd and Mr Harvey.

[10] Ms Shu Jing Lee is the Commercial Manager of JKS and is also married to Mr Kidd. Her evidence particularly went to her discussions with Mrs Pintabona about the telephone call which is significant in this issue, and to her involvement in the engagement of another staff member before the termination of Mrs Pintabona's employment. Ms Shu Jing Lee was also involved in the final termination of employment decision.

[11] Mr Outhwaite is a manager at JKS. His evidence went to his recollections of the telephone call incident, his involvement in the JKS investigation into Mrs Pintabona's conduct and the engagement of a new employee before the termination of Mrs Pintabona's employment.

[12] Mr Crommelin's evidence went to the taxation and other advisory services he and his firm provided to JKS. Mr Crommelin gave evidence about his involvement in the investigation of a complaint made by Mrs Pintabona about bullying impacting on her and in a separate investigation about her behaviour. Mr Crommelin also prepared each of the JKS witness statements on the basis of the advice these witnesses provided to him.

[13] Having considered all of the evidence before me I have reached the following conclusions about the range of factual issues in dispute.

[14] The circumstances under which Mrs Pintabona's employment ceased are relevant. Ms Pintabona's evidence went to concerns over the behaviour of Ms Zhoa, with whom she worked, and Ms Shu Jing Li. Mrs Pintabona also had concerns over the behaviour and Chinese language spoken by Ms Shu Jing Lee and Ms Zhao. Mrs Pintabona's evidence was that she provided a formal written complaint 2 about Ms Zhao to five JKS managers on 11 July 2014. I am not satisfied that the evidence establishes that this complaint was acted on, but I am similarly not satisfied that it was relevant to the termination of her employment.

[15] A significant issue relevant to the termination of Mrs Pintabona's employment relates to the disruption and tension in the workplace associated with the suspension and ultimate employment termination of Mr Harvey. The evidence of Ms Shu Jing Li 3 was that around 17 July 2014 JKS was proposing to terminate Mr Harvey's employment and that he was suspended. That employment termination subsequently occurred. I have concluded that the relationship between JKS management and Mr Harvey was, and for that matter, still is, acrimonious. The evidence establishes that it was Mr Harvey who telephoned Mrs Pintabona on 17 July 2015. That is now conceded by Mrs Pintabona and is clear from the material before me.

[16] Whilst Mrs Pintabona was either engaged on that telephone call or shortly after she terminated the call, she was asked by her manager, Ms Shu Jing Li if the caller was Mr Harvey and she advised that it was not. There is a significant difference between the evidence before me about the manner in which Ms Shu Jing Lee asked about this call. I have preferred the consistent evidence of Ms Shu Jing Lee, Mr Kidd and Mr Outhwaite, to the effect that the discussion which followed that phone call was not particularly loud.

[17] Mrs Pintabona and Ms Shu Jing Lee had a subsequent discussion about this incident. Mrs Pintabona's version is that:

“A few minutes later, Mrs Shu Jing Li approached me, and told me to come into the privacy of her office, were she apologized for her behaviour and I immediately admitted that the phone call had been from the employee (Mr Neil Harvey). I also told Mrs Shu Jing that Mr Harvey had telephoned me & also on previous occasions . I did not intend to b e dishonest, however when I was being yelled at in front of other employees(Mrs Zhao, Mr Outhwaite & Mr Kidd) I panicked and had a momentary lapse of judgement which I immediately rectified ...” 4 (sic)

[18] In contrast, Ms Shu Jing Lee asserted that Mrs Pintabona did not advise her that she had been talking with Mr Harvey. Ms Shu Jing Lee's version of that discussion is:

“Later that day I noticed Pina looked uncomfortable and I asked her to come to my office for a meeting. I told her that I want all of our staff to be happy and do not want the workplace being uncomfortable for anyone. Pina made further complaints about Juliet and told me that she was going to “sue Juliet personally and not the business”. I found this a bizarre comment and believe that Pina did not like Juliet. In that meeting I also asked Pina to work on the Friday (the next day) as we were busy, Pina said yes.” 5

[19] I have preferred the evidence of Ms Shu Jing Lee in this respect. I am not otherwise persuaded that the investigation into the phone call which Ms Shu Jing Li and Mr Kidd subsequently undertook would have been at all necessary if Mrs Pintabona had admitted on 17 July 2014 that she had been talking with Mr Harvey.

[20] The fact that Mr Harvey may have telephoned other JKS personnel over that time is immaterial. What matters is that Mrs Pintabona was not truthful in her advice to Ms Shu Jing Li on 17 July 2014.

[21] On 18 July 2014 Mrs Pintabona and Ms Zhao had an exchange relative to documents Mrs Pintabona was photocopying.

[22] Mrs Pintabona's evidence was that:

“I (Mrs Pintabona) went to my employment file and started to photocopy my Contract of Employment, when I was asked by Mrs Juliet Zhao (Xiang) what am I doing? I told Mrs Zhao that I was photocopying my contract of employment. Mrs Zhao asked me Why am I (Mrs Pintabona) leaving? “I responded “NO”. She then continued to ask are you going to put in a complaint “I responded “NO”

Mrs Zhao then asked me “Why am I (Mrs Pintabona) here, & did Mrs She Jing Li know that I was at work today? Which I replied “Yes”.
Mrs Zhao then said that she wasn’t told that I (Mrs Pintabona), was going to be in the office today, and that she was going to ring Mrs Shu Jing Li to confirm this? I replied to Mrs Zhao “you do that Juliet, whom she then rang Mrs Shu Jing Li on her own mobile, and spoke Chinese to her.

After the phone call in Mrs She Jing Li, Mrs Zhao started yelling at me (Mrs Pintabona) and accusing me (Mrs Pintabona) that I had photocopied another staff members information, and that she didn’t trust me, and to show her the documents I photocopied. I (Mrs Pintabona) replied “wait a minute, I’ll be back, and I’ll show her the documents I photocopied.
I (Mrs Pintabona) then went into the warehouse, and asked if two staff members (Mr Peter Maher & Mr Jarrad Fry) could come back into the office, to witness some documents, that I have to show Mrs Zhao.
I (Mrs Pintabona) returned back into the office, with one of the witnesses (Mr Jarrad Fry) which I (Mrs Pintabona) showed the witness all of the documents which I had photocopied & then showed all of the same documents to Mrs Zhao.” 6

[23] This issue was raised in a meeting between Mrs Pintabona and Ms Shu Jing Lee later that day. At that meeting Mrs Pintabona expressed concern that the events of the past two days constituted bullying behaviour by KJS and that she would pursue her concerns formally if they were not properly addressed. 7

[24] Mrs Pintabona's evidence was that:

“Mrs Shu Jing Li said that she would have a meeting with us all, to discuss this matter of BULLY as she did not want to see any of her staff members stressed.

I (Mrs Pintabona) agreed and left the office, and went home.” 8

[25] I am not satisfied that the evidence establishes that Mrs Pintabona inappropriately copied or took human resource management records, or, for that matter, other files.

[26] Mrs Pintabona was absent on sick leave from 21 July 2014 to 29 July 2014. She provided a doctors certificate for this absence.

[27] On her return to work in early August 2014 she found that a new employee had been engaged by JKS to undertake work which had, in part, been previously done by her. Further, this new employee was sitting at her desk. Mrs Pintabona was asked to sit elsewhere but did not consider that accommodation to be appropriate.

[28] In considering Mrs Pintabona's submission that this was indicative of an intention to dismiss her, I have accepted the evidence of Mr Outhwaite and Ms Shu Jing Li, to the effect that this new employee had been engaged through a process initiated some time earlier in order to deal with a growing work demand and that the new employee was seated at Mrs Pintabona's desk because that was the most convenient location given that she was being trained. Notwithstanding that, the JKS management practices in this respect clearly leave much to be desired and Mrs Pintabona was entitled to feel displaced.

[29] Mrs Pintabona made a further written complaint to JKS on 30 July 2014 9 in which she confirmed her concerns that she was being bullied and slandered. In this complaint she referred to the phone call she received on 17 July 2014 but did not disclose that she had denied that this was from Mr Harvey. Her letter of complaint referred to the events of 17 July 2014 in the following terms:

“On 17.7.14, I received a phone call in my personnel mobile at around 3.10pm. I noticed that Mrs Zhao, had entered into Mrs Shu Jing Li’s office, talking Chinese between them both, Mrs Shu Jing Li happened to look up towards me, then 5 seconds later, she came out of her office - screaming & demanding at me “Was that Neil” on the phone?

We then argued about this for some time, I feel that she has unfairly picked on me and singled me out for taking a personal phone call, which I only do very rarely. This is unfair and bullying.” 10

[30] Mr Kidd referred this complaint to Mr Crommelin for investigation. Mr Crommelin's evidence detailed the steps he took to investigate this complaint. 11 He convened a meeting on 4 August 2014 with Mrs Pintabona and Mr Harris, another JKS employee as her support person, and proposed a course of action to address her concerns. I am satisfied that this approach was properly founded and that, in the main, Mrs Pintabona accepted the actions proposed.12

[31] I have also concluded that at an unspecified time, but most likely after 4 August 2014, Mr Kidd and Ms Shu Jing Li gained access to telephone records that established that Mr Harvey had called Ms Pintabona on 17 July 2014 at the time Mrs Pintabona advised Ms Shu Jing Li that he had not done so. The evidence of Mr Kidd confirms that he directed Mr Crommelin to formally investigate this matter. I have concluded that this occurred after 4 August 2014 because I consider that the two issues would otherwise have been conflated.

[32] Mr Crommelin's evidence also confirms that he was subsequently asked to investigate concerns on the part of JKS about Ms Pintabona's behaviour on 17 July 2014. 13 Mr Crommelin met with Mr Kidd and Mr Outhwaite on 25 August 2014 together with Mrs Pintabona. I am satisfied that Mrs Pintabona was invited to have Mr Harris present as a support person and that she did not object to this. The JKS concernsthat Mrs Pintabona had lied to Ms Shu Jing Li were put to Mrs Pintabona. Mr Crommelin's evidence was that:

“I chaired the meeting. I discussed with Mrs Pintabona that irregularities had been identified by Mr Kidd and Ms Shu Jing Li in the earlier representations made by Mrs Pintabona, and Mr Kidd was very concerned that Mrs Pintabona had been deceitful. Further to this, Mrs Pintabona lodged a letter of complaint that was based around that lie. This indicated a serious action.

The matters discussed during the meeting are noted in my meeting notes, attached at Appendix 3. It was made clear to Mrs Pintabona that the purpose of the meeting was to provide an overview of the investigation conducted to date and to entitle Mrs Pintabona to provide her comments.

Upon being asked as to why she lied about Mr Harvey being on the phonecall on 17 July 2014, Mrs Pintabona indicated that she had in fact told Mrs Shu Jing Li that it was Mr Harvey on the phone. ....” 14

[33] Mr Crommelin, Mr Kidd and Mr Outhwaite then left Mrs Pintabona and Mr Harris in that meeting room and met with Ms Shu Jing Li. Ms Shu Jing Li confirmed that Mrs Pintabona had not told her, on 17 July 2014, or any other time that she had lied.

[34] I have accepted Mr Crommelin's evidence that:

“Following this interview, Mr Kidd, Mr Oathwaite and I discussed the outcome of the investigation:

- Mrs Pintabona firstly lied about the phone call not being from Mr Harvey
- Mrs Pintabona then used this lie as the basis for her letter of complaint dated 30 July 2014
- Mrs Pintabona then changed her story after the fact that the telephone bill of Mr Harvey’s mobile phone was tabled and it was evident that the 17 July 2014 phonecall was from Mr Harvey” 15

[35] The evidence of Mr Kidd 16 confirms his conclusion that Ms Pintabona could no longer be trusted. The evidence of Mr Crommelin17 confirms that the lie relative to the phone call was the central reason for the termination of employment decision notwithstanding Mr Kidd's other concerns relative to her access to Human Resource records and missing invoices.

[36] I have concluded that Mrs Pintabona lied with respect to her alleged disclosure to Ms Shu Jing Li on 17 July 2014.

[37] Mr Crommelin's evidence was that he prepared the letter confirming the termination of Mrs Pintabona's employment before this meeting so as to be prepared for that eventuality, but that it was not signed by Mr Kidd until the termination decision was made. This is consistent with Mr Kidd's evidence to the effect that, if the facts were not proven, or if Mrs Pintabona had apologised or provided an acceptable reason for her behaviour, he may have adopted a different position. 18

[38] I accept that the meeting notes, provided in typed form 19 are reflective of the conduct of this meeting.

[39] At the conclusion of the meeting, Mrs Pintabona was advised of her summary dismissal. The employment termination letter was provided to her.

Section 387 of the FW Act

[40] This section states:

“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.”

[41] I have considered each of these factors.

Valid Reason

[42] Notwithstanding subsequent legislative changes I have adopted the general principles set out in Selvachandran v Peterson Plastics Pty Ltd 20.

[43] Mrs Pintabona's conduct in untruthfully asserting that the phone call she received on 17 July 2014 was not from Mr Harvey, represented misconduct. In the context of the well known disputation between KJS and Mr Harvey, this was a significant issue. To the extent that she then made allegations of bullying directly related to the phone call circumstances which did not disclose her lie in relation to that phone call, I consider this to be serious and wilful misconduct in that it was deliberately misleading about the events of that day such that there was a valid reason for the termination of her employment.

[44] With respect to the allegations that Mrs Pintabona took material from JKS, I am not satisfied that, on the balance of probabilities, this allegation has been made out such that it could represent a valid reason for her dismissal.

Notification of the reason

[45] Mrs Pintabona was notified of the reasons for her dismissal on 25 August 2014 and was given written advice to confirm this.

Opportunity to respond

[46] Mrs Pintabona was given an opportunity to respond to the JKS concerns about her behaviour at the meeting on 25 August 2014. She utilised that opportunity. The meeting was suspended to enable further consideration of her response before the final termination of employment decision was made.

Unreasonable refusal to allow a support person

[47] Mrs Pintabona had Mr Harris present at the meeting on 25 August 2014 as her support person. She had accepted Mr Harris as her support person in the earlier meetings relative to her complaints and I am not satisfied that she objected to the 25 August 2014 meeting proceeding on that basis. Further, I am not satisfied that she requested an alternative support person or that such a request was refused.

Warnings about unsatisfactory performance

[48] Mrs Pintabona was not dismissed for performance reasons and warnings in that respect are not relevant to this matter.

Size of the JKS enterprise - impact on procedures and access to human resource management expertise

[49] JKS is a medium sized business which employed some 186 employees in September 2014. As such, I would have expected it to have policies and procedures dealing with disciplinary issues such as this. I am not satisfied that this was the case but the approaches implemented by Mr Crommelin reflect the application of clear procedural fairness principles. I am not persuaded that JKS had access to human resource management expertise but consider this to reflect a choice in this respect.

Other matters relevant

[50] I have considered the extent to which the engagement of a further employee whilst Mrs Pintabona was on leave reflected some unfairness in this matter. Whilst the circumstances of that appointment appear to reflect poor management, I am not satisfied that these circumstances explain or otherwise affect Mrs Pintabona's behaviour.

[51] I have considered the summary nature of the termination but am satisfied that the nature of Mrs Pintabona's misconduct was such that this was warranted in these circumstances. Simply put, I have concluded that Mrs Pintabona lied and then made a formal complaint which incorporated that lie such that JKS was entitled to have lost confidence in her as an employee. In this respect, I consider summary dismissal was an appropriate response.

[52] I have considered the effect of that dismissal on Mrs Pintabona. I have no doubt that this has profoundly affected her but this must be balanced against her deliberate behaviour.

Conclusion

[53] I do not consider that Mrs Pintabona's dismissal can be considered to be harsh in that she deliberately lied about the phone call on 17 July 2014 and then deliberately made a complaint about her treatment which excluded any recognition of that lie.

[54] Mrs Pintabona's dismissal was not unjust in that the circumstances were properly investigated and the facts relative to the phone call were established.

[55] Mrs Pintabona's dismissal was not unreasonable given the reasonable expectation that she would be honest in her dealings with JKS.

[56] For these reasons, Mrs Pintabona's application must be dismissed. An Order (PR567392) to this effect will be issued.

Appearances:

G McCorry agent for the applicant.

S Crommelin agent for the respondent.

Hearing details:

2015.

Perth:

May 13.

 1   Exhibit A1

 2   Exhibit A1, para 3

 3   Transcript, Sound Recording, 13 May 2015, 11.45 am

 4   Exhibit A1, page 2, para 4

 5   Exhibit R2, para 3

 6   Exhibit A1, page 2

 7   Exhibit A1, page 3

 8   Exhibit A1, page 4

 9   Exhibit A1, Attachment E

 10   Exhibit A1, Attachment E, paras 4 and 5

 11   Exhibit R13

 12   Exhibit R14, Appendix 2

 13   Exhibit R4, page 1

 14   Exhibit R4, page 2, paras 4, 5 and 6

 15   Exhibit R4, page 2, para 9

 16   Transcript, Sound Recording, 13 May 2015, 2.16 pm

 17   Transcript, Sound Recording, 13 May 2015, 1.55 pm

 18   Transcript, Sound Recording, 13 May 2015, 2.15 pm

 19   Exhibit R13, Appendix 3

 20 (1995) 62 IR 371 at 373

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