Marianne Alexander v Santosheema Pty Ltd t/as Cardiac Care Centre

[2015] FWC 8709

[2015] FWC 8709

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Marianne Alexander
v
Santosheema Pty Ltd t/as Cardiac Care Centre
(U2014/16217)

DEPUTY PRESIDENT SAMS SYDNEY, 17 DECEMBER 2015

Termination of employment – application for an unfair dismissal remedy – objection to jurisdiction – Small Business Fair Dismissal Code – record of lateness for work – swearing at colleagues – verbal warnings – written warnings – refusal to meet with employer – applicant’s evidence not accepted – appalling record of lateness – applicant aware of warnings – threats to resign – disrespect towards management and colleagues proven – dismissal consistent with Small Business Fair Dismissal Code – application dismissed.

BACKGROUND
[1] Ms Marianne Alexander (the ‘applicant’) was employed as a Student Sonographer by Santosheema Pty Ltd t/as The Cardiac Care Centre (the ‘respondent’ or the ‘Clinic’) from 14 October 2013 until she was dismissed on 26 November 2014. The applicant was employed as a part time employee under the Health and Professional Support Services Award 2010 [MA000027] with a salary of $75,000p.a (pro-rata).

[2] The reasons for the applicant’s dismissal were set out in a letter of termination dated 26 November 2014, which was expressed as follows:

‘I am writing to you to regretfully advise that management has decided to terminate your employment with us here at Cardiac Care Centre.

On 11 November 2014 you were sent a Warning Letter regarding your underperformance at work. Since then, your conduct has continued to be unsatisfactory. Rather than improving, your performance and attitude at work have become worse than before. Therefore, it is with regret that we have come to this difficult decision of terminating your employment today. Your one month notice period will end on 25 December 2014.

For your information, I would like to advise the reasons considered by management in reaching this decision, as you declined to hear them yesterday at our face to face meeting today and stormed out.

In my warning letter, we had asked that you endeavour to be punctual to work. However, since then you have been late by over 15 minutes on more than three occasions. In fact, yesterday, you walked in with a cup of coffee. Though you were late, you still found the time to purchase coffee from across the road, which surely would have delayed you a further 5 minutes. This shows a total lack of care or concern for your 9am patient waiting for and for your workplace.

Being disrespectful to your colleagues was another matter raised in your warning letter. Yet, you continued to argue with me over every request I have made of you the last two weeks. This includes my request to contact me on time (at least an hour before your shift) should you be calling in sick and to call rather than text. However, you ignored this request on 3 occasions this month, twice since receiving the warning. Furthermore, due to this behaviour, when I requested you let me know even if you are coming in, to allow me time to schedule a replacement for you, again you refused me this simple courtesy. Finally, when asked to complete your reports on time, you argued with me black and blue regarding not having enough time, yet you felt free to take an extra 15 minutes at lunch yesterday, and leaving on time. You further insulted myself and Dr Brahmbhatt by saying that we should „shut our mouths‰ if we donÊt [sic] count the number of missing reports for you. Your replacement had completed 3-4 reports on your behalf earlier this week, yet you refused to believe us, and stormed out when I informed you of your employment termination.

After considering the situation, Dr Brahmbhatt no longer wishes to work with you, and since you are a Student Sonographer needing supervision from a Cardiologist and are unable to work independently, we are no longer able to continue your employment with us.

We feel that we have given you plenty of opportunities to improve your behaviour through this year, with several verbal warnings and one written warning as well, and yet, your behaviour, and with it, morale in our office has worsened.

However, I would like to wish you all the best for your future endeavours.

If you have any further questions in this matter, please contact me in person, by phone on [number supplied] or by replying in writing.

Yours sincerely,
Sheema Brahmbhatt
Practice Manager’

[3] There is no doubt that the respondent is a Small Business Employer, as defined in s 23 of the Fair Work Act 2009 (the ‘Act’). It is a small specialist medical practice with four employees at the time of the applicant’s dismissal. Accordingly, the respondent raised a jurisdictional objection to the application being accepted by the Fair Work Commission (the ‘Commission’) as it claimed to have complied with the Small Business Fair Dismissal Code (the ‘Code’) when it dismissed the applicant (s 396(c)).

[4] Should it be found that the respondent complied with the Code in effecting the applicant’s dismissal, then the dismissal cannot be said to be an ‘unfair dismissal’ and the Commission will have no jurisdiction to determine whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act. So much so, is plainly evident from the interaction of the statutory provisions found at ss 385 and 396 of the Act. These provisions are set out below:

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.

…

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[5] At this juncture, it is convenient to make findings on a number of other preliminary jurisdictional matters :

• the applicant is a national system employee and the respondent is a national system employer, as defined (ss 13, 14);



• the application for a remedy from unfair dismissal was filed on 30 December 2014. If the applicant was dismissed on 27 November 2014, then the application was not filed within the 21 day time limit set out at s 394(2)(a) of the Act. I shall come back to this matter shortly but I intend to proceed on the basis that this criterion has been fulfilled;



• the applicant had completed the minimum employment period of twelve months (s 382(a));



• the applicant was covered by the Health Professional and Support Services Award 2010 (ss 382(b)(i));



• the applicant was dismissed at the initiative of the employer (s 385(a)); and



• the applicant’s dismissal was not a case of genuine redundancy (ss 385(d) and 396(d)).

[6] It will be seen by the use of the conjunction ‘and’ connecting each of the criteria in s 385 of the Act concerning whether a person has been unfairly dismissed, that each of the four criteria must be satisfied before the Commission can consider what remedy, if any, should be ordered to an unfairly dismissed person. As just mentioned, two of these four criteria have been met (sub-sections (a) and (d)), leaving extant the two questions of whether the dismissal was consistent with the Code and, if not, whether the dismissal was ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act.

[7] It is necessary to observe that the question of whether the applicant’s dismissal was consistent with the Code is a jurisdictional prerequisite to the exercise of the Commission’s powers as to merits and remedy. However, it is clear that consideration as to the application of the Code, will include matters going to the reasons for, and processes leading to, the applicant’s dismissal. So much so is evident from the relevant paragraphs of the Code which I reproduce below:

‘Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.’

[8] Ultimately, the case proceeded on the basis of both parties putting their positions as to the reasons for the applicant’s dismissal, whether the applicant was warned her employment was at risk and whether she was given an opportunity to remedy the respondent’s concerns with her conduct and poor punctuality. While it is not strictly necessary to my ultimate conclusions in this matter, it is instructive to appreciate the background to this hearing and to explain why the jurisdictional hearing had not taken place earlier - given the applicant was dismissed over twelve months ago.

[9] Ms Alexander’s application for a remedy from her alleged unfair dismissal was lodged on 30 December 2014 and was processed in the usual way by the Commission’s Unfair Dismissal Unit. Following an unsuccessful conciliation, the applicant was directed to file material in support of her application. She failed to do so. The matter was listed before Johns C for a non-compliance hearing under s 399A of the Act. The applicant did not attend that listing and was not represented. The Commissioner waived compliance with the Rules and accepted the application. Further directions were issued and the applicant again failed to comply. This precipitated a further hearing to consider the respondent’s application to dismiss the case. In her decision of 13 April 2015 (Marianne Alexander v Santosheema Pty Ltd T/A Cardiac Care Centre [2015] FWC 2544), Gooley DP said at paras [20]-[23]:

‘[20] Ms Alexander has been indifferent to her obligations to file material in accordance with the directions of the Commission. Not only has she not complied, she has failed to provide any reasonable explanation for her failure to comply. She did not attend the telephone conference to deal with her non compliance and she did not respond to the opportunity to explain her non compliance. The medical certificate did not advise that she was incapable of filing the material. Further, there was no evidence that she was ill at the relevant time.

[21] I can understand Ms Brahmbhatt’s frustration. She has complied with directions and further delay will mean that this matter cannot be heard until after she returns from leave.

[22] Ms Alexander had failed to comply with Commission directions. Having made that finding, it is necessary to decide if I will exercise my discretion to dismiss the application.

[23] Ms Alexander has advised her material is ready to file. In those circumstances, I am prepared to give her until 5pm on 14 April 2015 to file and serve her material. I will not dismiss the application to dismiss at this time, but if Ms Alexander does not file and serve her submissions and witness evidence as directed, I will dismiss her application without any further reference to her.’

[10] The respondent appealed this decision. A Full Bench of the Commission refused permission to appeal and dismissed the appeal on 30 September 2015 (Santosheema Pty Ltd T/A Cardiac Care Centre v Marianne Alexander [2015] FWCFB 6944). The residual jurisdictional matter was then allocated to me for determination.

THE EVIDENCE

[11] The following persons gave written and oral evidence in the proceeding:

• The applicant;



• Ms Sheema Brahmbhatt, Practice Manager and Director of the Clinic;



• Ms Nargis Monwara, Cardiac Technician at the Clinic; and



• Ms Sonja Gurabiovska, Medical Receptionist at the Clinic.

The applicant

[12] During her employment over one year and two months, the applicant was completing a graduate diploma in Cardiac Ultrasound at the Queensland University of Technology. I note that in her statement, the applicant said she was dismissed on 26 November 2014. If this was correct, her application under s 394 of the Act, would be ‘out of time’, pursuant to s 394(2) of the Act. To reconcile this difficulty, the respondent’s Form F3 states that the applicant’s dismissal took effect on 10 December 2014. Her dismissal letter (See para [2] above) is dated 26 November 2014, with a one month notice period up to 25 December 2014. It would appear that this notice was rescinded by the respondent and the applicant’s last day of work was 8 December 2014, as Annexure A discloses that she left work at 4:45pm on that day. That said, it is unnecessary to determine the actual date of dismissal vis a vis the filing of the application for reasons which will be set out shortly. At this point, I proceed on the assumption that the application was lodged within time.

[13] It was the applicant’s firm evidence she was never warned, prior to her dismissal, that there was any problem with her conduct or capacity to do her job. She believed the respondent terminated her employment to avoid paying her a higher rate of pay when she completed her studies later in the year. The applicant said that Ms Brahmbhatt had been constantly asking her when she would be leaving.

[14] The applicant refuted the allegations contained in the warning letter of 11 November 2014, which she claimed to have received on 21 November 2014. She further stated that she was given no opportunity to respond to the allegations set out in that letter. She claimed that she was not late for work on 24 November 2014 (two days before her dismissal) and the trains were late on 25 November and she arrived at 9:10am. She denied waiting five minutes for a coffee and said she had ordered it from the train and picked it up on the way.

[15] The applicant denied not completing patient reports on time. On one occasion, the server was not working. She added that the employer insisted she work overtime, without payment, to complete the reports. The applicant said the respondent was dishonest in stating she spent more than 30 minutes on a lunch break. She often worked through her break without pay.

[16] The applicant denied that she received a written warning on 11 November 2014. She claimed to be unaware of this email. She also claimed she received the warning letter on 21 November 2014, not 11 November. She further denied there was a request to meet with her on 7 November 2014.

[17] The applicant denied abusing and behaving disrespectfully towards her colleagues and believed the respondent had acted dishonestly in submitting she had been.

[18] In cross examination, the applicant denied that she was warned at least every two weeks about her lateness to work. She believed it may have been every two months, but explained that the Hurstville train line, which she used, was the worst for late-running trains. She then changed her evidence to say that she may have been spoken to about lateness two or three times during her thirteen months of employment. She did not consider having been spoken to about lateness, as constituting a warning. Her evidence changed again when she said she had been warned once, but could not recall when.

[19] The applicant was asked about incidents involving disagreements with two other staff members, Ms Nargis Monwara and Ms Sonja Gurabiovska, in July 2014. She did not believe these were disputes or arguments. She could not recall being asked to apologise to either of them. Specifically, she could not recall a disagreement with Ms Monwara on 14 October 2014, in which she called Ms Monwara a ‘pig’ and a ‘liar’. She did not recall meetings with Ms Brahmbhatt and Dr Brahmbhatt about this issue, in which Ms Brahmbhatt told her she was warned for her language and Dr Brahmbhatt told her she was not to call Ms Monwara names. She further could not recall walking out of the meeting and saying ‘I’m not going to work with Nargis anymore. I’m going to resign anyway… you are all taking her side.’

[20] The applicant again denied receiving Ms Brahmbhatt’s email and the attached warning letter around 11:46am on 11 November 2014, despite responding to Ms Brahmbhatt at 1:40pm - two hours later. The email from Ms Brahmbhatt to the applicant at 11:46am, with the subject line of ‘Are you planning on returning to work?’, was expressed as follows:

‘Marianne,
I would like to ascertain as to your intentions in regards to your position here at Cardiac Care Centre.
Your behaviour has been wildly erratic this month, and it is causing a lot of inconvenience to our patients and staff members.
Yesterday, you failed to turn up for work at your normal start time of 9am and sent me a short incoherent text message at 10am regarding being unwell.
This is completely unprofessional and cannot be accepted as a suitable method of calling in sick.
As you are aware of company policy, you must call and not text, if you are unable to attend work.
Furthermore, this is to be with maximum notice possible, not an hour after you were due at work. It must be at least an 1 hour before your start time and if it is after a weekend or public holiday, you must call the day before.
We have real people who take time out of their lives to attend their appointments, and your non-attendance caused a lot of inconvenience to our mostly elderly patients.
They had to wait for you half an hour, while we tried to ring you desperately to see where you were.
This is unacceptable for us and our patients and you may consider yourself warned, that should this happen again, your employment with Cardiac Care Centre will be terminated.
As you know, this is not the first time you have not shown up to work without notice either, but the third time this year.
I am, therefore, attaching your letter of warning above, since you declined to speak with us in this regards on Friday last week, 7th November 2014.
Furthermore, we have not heard from you at all, by phone or email, since your text message yesterday.
You failed to turn up without any notice or notification at all today, and your phone number is now disconnected.
Please note that I take this as abandonment of work and we are within our rights to terminate your employment with us immediately.
We cannot have a staff member in your position simply abandon their work as we have a lot of patients relying on you for their care.
If you are serious about your job here at Cardiac Care Centre, you are to contact me immediately and advise of your intentions.
Thanks,
Sheema [emphasis added]’

[21] The warning letter attached to the above email was expressed in these terms:

‘Dear Marianne,

Warning letter

I am writing to you about your conduct during your employment with Cardiac Care Centre.

On 7 November 2014 you declined my invitation to meet with myself and Dr Rajesh Brahmbhatt to talk about your underperformance at work. Instead, you advised me that this would be completely unnecessary as you were planning to resign soon.

Therefore, I wish to convey your warning in writing. I would like to advise you that your conduct has been unsatisfactory, and that immediate improvement is required should you wish to continue working with us.

In particular we advise that regularly attending work late and abusing or being disrespectful to your colleagues in any way will no longer be tolerated. Also, abandoning your work using feigned sickness as a form of blackmail and asking colleagues to lie on your behalf is definitely beyond tolerance and may lead to instant dismissal should it happen again. Furthermore, non-attendance to work without any prior notice, as you have done three times this year, will not be accepted and will lead to dismissals [sic].

After considering the situation it is expected that your conduct improves and specifically that you are punctual to work, courteous to your colleagues, and behave professionally towards your employers, at all times.

This is your only warning letter. Your employment may be terminated if your conduct does not improve by 24th December 2014.

I propose that we meet in a monthÊs [sic]time, on 5 December 2014 at 5:00 pm to review your progress. Please let me know if this time is convenient to you. If you wish to respond to this formal warning letter please do so by contacting me in person, by phone on [number supplied] or by replying in writing.

Yours sincerely,

Sheema Brahmbhatt
Practice Manager’

[22] At 1:40pm, the applicant responded to the email in the following terms:

‘HI,

You told me no [sic]to come in today. I will be at work tomorrow. As i said my phone is broken. Furthermore there was a [sic]never a problem with texting you before.

Regards,
Marianne’

The applicant then advised she did not realise there was an attachment to the email because she was unwell at the time. In response to questions from me, the applicant agreed the email had referred to a warning letter, but she had not read it.

[23] The applicant denied she had ever refused to speak to Ms Brahmbhatt. She was asked if she recalled Ms Brahmbhatt asking to speak to her on 7 November 2014. She denied this had happened and denied having said, ‘There’s nothing to speak about. I am resigning anyway.’

[24] In returning to the frequency of her lateness, the applicant denied being late, four days out of five in most weeks. When pressed for her estimate, she said it averaged ‘zero’ in a month. The applicant denied that the respondent changed her start time to 9:30am, because she could not turn up in time for 9:00am. This change was actually because she had been staying back after her usual finishing time.

[25] The applicant could not recall failing to attend for work on three occasions, without phoning or texting her employer. One was an emergency and on another occasion, she was unwell and could not wake up. She could not recall being told to phone, rather than text, if she was not coming into work.

[26] The applicant agreed she had received a pay increase in August 2014 and a further increase, both of which were unrelated to her finishing her course. The applicant denied telling Ms Brahmbhatt, many times, that she was going to fail her course because the University was against her. In the end, she did not finish her course because Dr Brahmbhatt had not signed off on her workbook. She claimed she gave him her workbook to sign a month before it was due to be submitted.

[27] The applicant believed Ms Brahmbhatt had behaved emotionally because she was pregnant. However, she could not recall Ms Brahmbhatt ever being disagreeable towards her. The applicant could not recall much of what was said in the meeting of 26 November 2014, in which she was terminated. The applicant denied there had been missing reports. She denied telling Dr Brahmbhatt he was a liar. She believed the meeting lasted less than five minutes and Ms Brahmbhatt stormed off after dismissing her.

[28] The applicant admitted telling Ms Brahmbhatt that the only reason she had her job was because she was the boss’ daughter. However, she denied saying that Ms Brahmbhatt had no idea what she was doing, or that she screamed at her and stormed off.

For the respondent

Ms Sheema Brahmbhatt

[29] Ms Brahmbhatt is responsible for all HR matters at the Clinic. She employed the applicant as a Trainee Sonographer and was responsible for dismissing her. The applicant’s duties were to conduct Stress Echocardiograms on patients under the supervision of the Cardiologist, Dr Rajesh Brahmbhatt. This work included completing preliminary reports for each patient.

[30] Ms Brahmbhatt said that the main reason for the applicant’s dismissal was her frequent lateness for work. To demonstrate her poor punctuality record, Ms Brahmbhatt tendered a spreadsheet, which is annexed to this decision and marked ‘Annexure A’. Ms Brahmbhatt orally warned the applicant on several occasions, but despite her promises to improve, nothing changed. Her late arrivals disrupted the timeliness of the Clinic, with patients having to wait 15-20 minutes past their appointment times, for the tests to be carried out. Despite her ‘tardiness’, Ms Brahmbhatt said that the applicant’s work was technically good and that Dr Brahmbhatt was happy with the technical aspects of her work.

[31] Ms Brahmbhatt said that there were other occasions when the applicant did not even show up for work (14 January 2014, 30 June 2014 and 10 November 2014). Ms Brahmbhatt stressed to her that she should phone her if she was not coming into work and do so before her scheduled start time. She was instructed not to send text messages.

[32] Around July 2014, Ms Brahmbhatt was advised by two other staff members, Ms Sonja Gurabiovska and Ms Nargis Monwara, that the applicant had been rude to them, had used foul language in the stress test room and had accused Ms Gurabiovska of being a liar in front of patients in the reception area. When Ms Brahmbhatt confronted the applicant, she did not deny her behaviour and claimed it was justified. A meeting was held with all staff to discuss emergency procedures in situations when a patient needed urgent medical assistance during a stress test. This was the origin of the dispute between Ms Monwara and the applicant.

[33] On 14 October 2014, Ms Monwara complained to Ms Brahmbhatt that the applicant had called her a various names, such as ‘pig’, ‘dirty’, ‘blind’, ‘deaf’ and ‘stupid’. When she spoke to the applicant, and told her to stop the name calling, the applicant said she felt justified in using this language. She had refused to apologise to Ms Monwara. That evening, Ms Brahmbhatt met with Ms Monwara, the applicant and Dr Brahmbhatt. The applicant was again directed not to abuse her colleagues and told that similar behaviour in the future would not be tolerated. The applicant walked out, saying that she was going to resign anyway and that management was ‘taking sides’. She believed she had done nothing wrong. Ms Brahmbhatt had later told the applicant that if she intended to resign, she should give the correct notice.

[34] It was Ms Brahmbhatt’s evidence that while all staff are paid monthly, in September 2014, the applicant had requested that she be paid fortnightly. This was agreed to by the respondent. A few weeks later, the applicant changed her mind and said she wanted to be paid the last three weeks of October in one payment. A week later, she changed her mind again, wanting to revert to fortnightly pay. Ms Brahmbhatt said that this frequent changing of the pay cycle was time consuming and could not always be accommodated.

[35] Ms Brahmbhatt said that on 3 November 2014, the applicant rang her demanding she be paid for the previous week as a one off. Ms Brahmbhatt explained that this was difficult because she was offsite and very busy with a new Cardiologist commencing employment. At this, the applicant became very rude, shouting and saying she was heartless for not paying her when she needed it. The applicant then hung up, but then called back and said she would resign if she was not paid as she demanded. Ms Brahmbhatt said that she would not be blackmailed into paying her whenever she wanted. The applicant then said she was sick and going home. Ms Brahmbhatt said she needed to provide a doctor’s certificate. Ms Gurabiovska rang Ms Brahmbhatt shortly after to advise her that the applicant asked her to tell Ms Brahmbhatt that she looked sick. Ms Gurabiovska had felt uncomfortable lying for the applicant. The next morning, the applicant called Ms Brahmbhatt and said she would be calling in sick because she did not pay her and could not afford the train fare. Ms Brahmbhatt agreed to pay her on condition she revert to, and remain on monthly pays. The applicant ‘miraculously’ returned to work the next day.

[36] Ms Brahmbhatt said the applicant was very ‘icy’ towards her for the next few days and Ms Brahmbhatt requested she attend a meeting on 7 November 2014. The applicant refused and said that there was no need to discuss anything, because she was planning to resign. On 10 November 2014, the applicant failed to turn up for work, without advising of her absence. When attempts were made to contact her, her phone was switched off. The applicant texted around 10:00am to say she was sick. Ms Brahmbhatt said that she was outraged at the lack of professionalism and determined to issue her with a formal warning letter. This was done on 11 November 2014 and the applicant responded the same day (see paras [20]-[22]).

[37] Ms Brahmbhatt denied the applicant’s claim that she was dismissed because she would be due for a salary increase after finishing her studies. Ms Brahmbhatt said that the cost of replacing the applicant with a contractor, was considerably more (double) than the applicant’s salary. Moreover, Ms Brahmbhatt said that she was unaware that the applicant was due to finish her studies, as the applicant had previously told her she was failing her course, because her University Co-ordinators were unhappy with her performance and attitude.

[38] Ms Brahmbhatt emphasised that even after the issuing of the warning letter, in a span of a month, the applicant was late on five further occasions, and was a ‘no show’ on three other days. On the last day of her employment, the applicant ‘waltzed in’ at 9:20am with a coffee, when her patient’s appointment was at 9:00am. The same day, Ms Brahmbhatt asked the applicant to complete her missing reports. However, she denied leaving any outstanding reports and blamed it on a computer server being down. However, Ms Brahmbhatt said the server was only down for two days and her incomplete reports had commenced from the start of November 2014.

[39] In respect to the applicant’s complaint of not being paid overtime, management believed that due to the applicant’s constant late arrivals, overtime would not be paid. Ms Brahmbhatt calculated that the applicant still owed the Clinic 25 hours for time she had not made up. Ms Brahmbhatt added that the applicant had taken longer lunches on many occasions.

[40] Ms Brahmbhatt said that in her final month, the applicant ‘gave us a lot of grief’. She did not have a contact number for all of November 2014 and would text from random phone numbers or her phone would be switched off.

[41] In cross examination by the applicant, Ms Brahmbhatt was asked why she had increased her pay if she had behaved so badly. Ms Brahmbhatt explained that Dr Brahmbhatt was happy with her technical work, but she had been warned repeatedly about her tardiness and punctuality. Ms Brahmbhatt said the incidents with other staff were not spelled out in the applicant’s termination letter, because there had been argument and a meeting was called with the relevant staff to discuss the conflict in the stress room. A further meeting with all staff a week later discussed emergency procedures in the Clinic.

Ms Nargis Monwara

[42] Ms Monwara has been employed by the respondent since 2011. She worked alongside the applicant during Stress Echocardiograms. In the first few months of working together, Ms Monwara and the applicant had a good working relationship. However, in July 2014, the applicant became very upset with Ms Monwara and started screaming and swearing at her in front of a patient. Ms Monwara left the room and was crying. She called Ms Brahmbhatt to advise of the incident and Ms Brahmbhatt told her that she would deal with it the following week. After talking to both of them, Ms Brahmbhatt told Ms Monwara to stick to professional conversation with the applicant.

[43] In the next few months, Ms Monwara said that the applicant would call her names, such as ‘blind’, ‘deaf’, ‘stupid’, ‘illiterate’ and ‘dirty’. In October 2014, Ms Monwara could not take it anymore. When she complained to Ms Brahmbhatt, the applicant had come in the office and said that Ms Monwara must be a bad Mum and she felt sorry for her kids. She was shocked by this personal comment. Later, with Dr Brahmbhatt present, the applicant said to her, ‘Use your brain, you stupid’. Ms Monwara left the room in tears. That evening, Ms Brahmbhatt and Dr Brahmbhatt had a meeting with both of them. When the applicant was told not to call Ms Monwara names and behave professionally, she walked out and said she was going to find another job.

[44] Ms Monwara gave evidence of the day the applicant was dismissed. She had heard the applicant yelling and screaming at Ms Brahmbhatt and was worried for Ms Brahmbhatt’s safety, given her own experiences with the applicant’s temper.

[45] In addition, Ms Monwara said that some patients complained to her about the applicant talking fast and, on one occasion, drinking a coffee during a test. The applicant even argued with the patient.

[46] Ms Monwara now feels safe coming to work with the applicant gone and is much happier. She concluded her statement, by saying that ‘Marianne is just a bad memory’.

[47] The applicant spent most of her cross examination of Ms Monwara attempting to establish that Ms Monwara could not have heard anything on the day she was dismissed, because Ms Monwara was never at work after 5:00pm, as she always caught a particular train. In further and repetitive questioning, Ms Monwara said she would leave work when the last patient had been tested, mostly at 5:00-5:30pm, but sometimes 6:00pm. She insisted that on the day in question, she had heard the shouting and then left, but could not remember the time. She had spoken to Ms Brahmbhatt, who told her the applicant had criticised her professional and management practices and called Dr Brahmbhatt a liar. Ms Brahmbhatt did not think the applicant would be coming back.

[48] The applicant believed the incident (her dismissal) had taken place an hour and a half after Ms Monwara had left the Clinic. Ms Monwara insisted she had heard the shouting and had seen the applicant leave the Clinic, but conceded she could not remember at what time.

[49] In re-examination, Ms Monwara confirmed the office is not very large and she was in a position to hear clearly what was being said that day.

Ms Sonja Gurabiovska

[50] Ms Gurabiovska has worked at the Clinic since 2012 as the full time Medical Receptionist. Ms Gurabiovska described two incidents involving the applicant.

[51] One day in July 2014, the applicant approached Ms Gurabiovska at reception and accused her of increasing the room temperature by turning up the thermostat and she wanted it lower. When Ms Gurabiovska said she had not touched the thermostat, the applicant called her a liar in front of a room of patients. Ms Gurabiovska said she was mortified and started crying. Ms Gurabiovska reported the incident to Ms Brahmbhatt and about one week later, the applicant apologised to her.

[52] On another occasion in November 2014, the applicant asked Ms Gurabiovska to tell Ms Brahmbhatt that she (the applicant), looked sick. Ms Gurabiovksa was surprised as the applicant looked perfectly fine and she was not comfortable lying for her. She reported this incident to Ms Brahmbhatt.

[53] From Ms Gurabiovska’s position in reception, she observed that the applicant was very unreliable in that:

• she was late almost every day;



• she frequently called in sick;



• she sometimes just did not turn up; and



• patients complained that she was very rude to them and to Ms Monwara.

Ms Gurabiovska believed that the applicant was the most unprofessional person she had ever worked with in the medical industry. With her gone, the workplace was professional again and a lot calmer.

[54] In cross examination, Ms Gurabiovska reiterated her account of the incident in July 2014, concerning the air-conditioning in reception. She said that no one had ever called her a liar before. In questioning of Ms Gurabiovska, the applicant sought to establish that the incident had not occurred as Ms Gurabiovska had described it.

[55] In relation to the incident when the applicant asked her to say she looked sick, Ms Gurabiovska was asked if she really told her that she felt sick. Ms Gurabiovska simply passed the message on that ‘she’s sick, she looks sick, she needs to go home in the middle of the day.’ The applicant continued to press Ms Gurabiovska, as she said that she was seeking to establish her statement was false. Ms Gurabiovska did not say what was wrong with her. She simply said, ‘I can’t work anymore, I need to go home’.

[56] Ms Gurabiovska clarified her evidence that patients had complained to her about the applicant ‘a couple of times’.

[57] In re-examination, Ms Gurabiovska said that when the applicant called her a liar, she was upset, could not stay in the reception area and contacted Ms Brahmbhatt to advise her of what had happened. The applicant had apologised to her one week later.

[58] Ms Gurabiovska’s evidence was that she had heard Ms Brahmbhatt warning the applicant about her punctuality. Indeed, she had asked Ms Brahmbhatt to warn her because of the delays her lateness caused for patients whose tests were booked at 9:00am.

SUBMISSIONS

For the applicant

[59] The applicant claimed that her dismissal did not satisfy the Code because:

(a) she was not given notice of the dismissal immediately before, or at the time of her dismissal;
(b) she was not warned verbally, or in writing, that she risked being dismissed if there was no improvement; and
(c) the respondent did not provide her with an opportunity to respond to the warning and give her a reasonable chance to rectify the problem, having regard to her response.

She further claimed that all three of the witness statements relied on by the respondent were untrue.

For the respondent

[60] Ms Brahmbhatt’s written submissions largely replicated her evidence and I will not repeat them here. She submitted that the applicant’s employment was terminated for three main reasons:

1. Being consistently late to work.
2. Being disrespectful to her colleagues and employer.
3. Being consistently irresponsible and unprofessional, with late or no notifications of non-attendance to work.

[61] The respondent, as a small business employer, had complied with the Code in that the applicant:

• was given a written warning on 11 November 2014, because she refused to meet to discuss issues with her performance;



• was given numerous verbal warnings and provided with an opportunity to improve her attendance. Rather than improving, she made excuses and blamed others;



• behaved rudely and unprofessionally towards her colleagues and refused to recognise her behaviour. Moreover, she insisted she was intending to resign anyway;



• was rude and disrespectful to her managers;



• was never denied an opportunity for a support person to be present, because she refused to engage with management and only responded by email; and



• was late, even for this Commission proceeding. This was indicative of her behaviour.

CONSIDERATION

[62] Given the applicant’s indifference to her obligations to properly prosecute her case or to explain her reasons for such failure and non-attendance at Commission proceedings (see paras [9]-[10]), I am not the least bit surprised that this indifference, even contempt, for her responsibilities, was replicated at the workplace by her endemic lack of punctuality. The record of lateness tendered by the respondent was, to put it bluntly, utterly appalling and completely unacceptable. On my reckoning, this included at least 90 occasions on which the applicant was late, including three ‘no-shows’, in 14 months. She was late more than once a week for the entire period of her employment; See: Annexure A. The applicant’s record of lateness is even more unbelievably compounded considering that for some time, she was not working a full week.

[63] Frankly, I am surprised that she lasted in employment for as long as she did. Incredibly, if there was any need for corroboration of this behaviour, it was the fact that she arrived fifteen minutes late for this hearing, claiming the taxi she called had not arrived.

[64] On any objective analysis, this record of lateness and unpunctuality was a valid reason for the applicant’s dismissal. The reason was neither capricious, fanciful, spiteful or prejudiced; See: Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371. While accepting that there are individuals who simply have no concept of time and, consequently, no sense of responsibility to attending to work or appointments on time (and the applicant may be such a person), what I found more troubling was the applicant’s unconvincing attempts to firstly, suggest her punctuality record was not so bad and, when this proved unbelievable, to argue that she had reasonable explanations for her lateness, mostly that her train was late.

[65] In my view, her evidence in this respect was inconsistent, unconvincing and implausible. Regrettably, I found the applicant to be an unreliable witness of little credit. In the witness box, she was smug, and alternatively non-responsive and argumentative. She was disrespectful and contemptuous of the respondent’s witnesses and claimed they were liars who had conspired against her. If her demeanour in the witness box (which was not truly captured by the transcript), was indicative of how she treated her work colleagues, I have no doubt that the other allegations of her disrespect and rudeness to work colleagues were correct.

[66] Let me make it very clear; I am satisfied that the applicant:

• called Ms Monwara a variety of derogatory and hurtful names;



• falsely accused Ms Gurabiovska of being a ‘liar’ in front of a room full of patients;



• told Ms Brahmbhatt that she only had her job because she was the boss’ daughter and that she had no idea what she was doing;



• told Dr Brahmbhatt that he was a liar;



• screamed at Ms Brahmbhatt in the meeting on 26 November 2014 and stormed out of the office; and



• had stated that she intended to resign on a number of occasions.

[67] Specifically, I accept that Ms Monwara heard the applicant’s shouting and screaming on 26 November 2014. More generally, I reject the applicant’s submission that the respondent’s three witnesses’ evidence was untrue. They had not ‘conspired’ against her. Their evidence was consistent and inherently believable.

[68] On one view, I do not have to make findings as to the above allegations, as it is sufficient for me to determine this case on the punctuality question alone. That said, the applicant claimed that she had never been warned her behaviour needed to improve and had been given no opportunity to respond to the warning letter because she did not receive it before she was dismissed. Both of these matters go directly to whether there was compliance with the Code by the respondent.

[69] Putting aside the respondent’s notes of having spoken to the applicant about her lateness, I found the applicant’s evidence on both of these matters to be inconsistent, confusing and more than likely made up for the sole purposes of this case. Wherever she was asked a question inconvenient for her own purposes, she answered that she could not recall.

Was the applicant warned about her lack of punctuality?

[70] Here the applicant’s evidence was ‘all over the place’ and even changed from question to question. She said she was never warned, then said that it may have been every two months, then it may have been two or three times in 13 months, then it was back to only being once and she could not recall when.

[71] In the face of the preponderance of evidence to the contrary, I am satisfied that the applicant was warned, on numerous occasions, about her punctuality. These warnings prompted not a flicker of improvement. Notwithstanding the ‘shifting sands’ of the applicant’s evidence, when she realised her denials were making little impact, she changed tack. Now her evidence was that these warnings were not really warnings at all, she was just spoken to by Ms Brahmbhatt or they just had a conversation about her lateness. Such evidence is nonsense. The applicant would have been under no illusion her punctuality was a serious issue for the Clinic, given that her lateness caused a backup of patients’ appointments, with flow-on problems for the entire day.

Was the applicant unaware of the warning letter and denied a reasonable opportunity to respond?

[72] The applicant claimed she only received the warning letter dated 11 November 2014 on 21 November 2014. However, there is unequivocal email evidence that this was untrue. She had received the warning letter as an attachment to an email from Ms Brahmbhatt at 11:46am on 11 November 2014, inquiring as to why she failed to attend for work that day (see: paras [20]-[22]). The email makes an express reference to the attached warning letter.

[73] That the applicant must have received the email is all too apparent by her response at 1:40pm in these terms:

‘HI,
You told me no to come in today. I will be at work tomorrow. As i said my phone is broken. Furthermore there was a never a problem with texting you before.
Regards,
Marianne’

[74] Even giving the applicant the benefit of the doubt, as to whether she received the ‘attachment’, she had directly responded to Ms Bhrahmbhatt’s question, ‘Are you planning on returning to work?’, which included reference to the attached letter of warning. Yet she made no complaint as to not receiving the attachment, or being unaware of the warning letter’s existence. Moreover, the text of the email to which the applicant responded, included the following:

‘This is unacceptable for us and our patients and you may consider yourself warned, that should this happen again, your employment with Cardiac Care Centre will be terminated.’

In other words, the covering email to the warning letter was itself a warning. There can be no denying the applicant had received this email and had responded to it two hours later.

[75] In any event, I am satisfied, on the balance of probabilities, that the applicant received the warning letter on 11 November 2014 and that she clumsily fabricated her evidence to give the impression she was unaware of it to bolster her argument that she had no notice of the allegations against her and that the Code had therefore not been followed.

[76] For completeness, I am also satisfied that the applicant refused to attend a meeting with Ms Brahmbhatt and Dr Brahmbhatt on 7 November 2014, to discuss her performance, as she told Ms Brahmbhatt that she was planning to resign anyway. Her evidence denying any knowledge of the meeting request is rejected.

SUMMARY OF FINDINGS

[77] The Commission makes the following findings:

1. The respondent is a Small Business Employer, as defined by s 23 of the Act;
2. The applicant’s dismissal was covered by the Small Business Unfair Dismissal Code;
3. As the applicant refused to attend a meeting to discuss her punctuality and conduct on 7 November 2014, and refused to engage with the respondent except by email, the issue of a support person does not arise;
4. The applicant was verbally warned on many occasions, and finally, in writing, on 11 November 2014, that her punctuality and conduct needed to improve or her employment may be terminated;
5. The applicant received the warning letter on 11 November 2014.
6. The applicant’s conduct and performance did not improve and, arguably, became worse;
7. Where the evidence of the applicant conflicts with that of Ms Brahmbhatt, Ms Monwara and Ms Gurabiovska, it is their evidence which I prefer;
8. There was a valid reason for the applicant’s dismissal;
9. The respondent complied with its obligations under the Code in respect to the applicant’s dismissal. Her dismissal was consistent with the terms of the Code;
10. Given the above finding at (9), the applicant cannot have been unfairly dismissed (s 385 of the Act);
11. Accordingly, it is unnecessary to determine whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act; and
12. The applicant’s claim for an unfair dismissal remedy must be dismissed.

[78] Orders giving effect to my findings above will be issued contemporaneously with this Decision.

DEPUTY PRESIDENT

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