Marie Axmann v Global Players Network Pty Ltd t/a GP Network Pty Ltd

[2013] FWC 6719

[2013] FWC 6719

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Unfair dismissal

Marie Axmann
v
Global Players Network Pty Ltd t/a GP Network Pty Ltd
(U2013/6774)

DEPUTY PRESIDENT ASBURY BRISBANE, 25 SEPTEMBER 2013

Application for unfair dismissal remedy - Arbitration - Remedy granted.

[1] Ms Marie Axmann applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to her dismissal by Global Players Network Pty Ltd T/A GP Network (GP Network). GP Network is a direct mail company. The Company employs some 80 persons including employees who make customer service calls during which they answer questions and engage in public relations with customers.

[2] Ms Axmann commenced employment with the GP Network on 14 February 2012 and was notified of her dismissal on 7 February 2013. Ms Axmann was employed as a Customer Service Consultant in GP Network’s German speaking team. Ms Axmann was employed on a casual basis throughout the period of her employment with GP Network.

[3] GP Network variously contended that the decision to dismiss Ms Axmann was based on a review of the Department in which Ms Axmann was working and the use of casual employees in that Department, and demonstrated diminished performance of Ms Axmann on the basis that she had received three previous warnings for unacceptable behaviour and poor work performance. There was also a view expressed in the submissions and evidence of GP Network that Ms Axmann was a casual employee and her employment was terminated appropriately and in accordance with that status.

[4] Ms Axmann’s unfair dismissal application was made on 21 February 2013, within the time required in s.394(2) of the Act. Notwithstanding the views of GP Network about Ms Axmann’s status as a casual employee, Ms Axmann is a person protected from unfair dismissal as defined in s.382 of the Act. GP Network is not a small business and the dismissal was not a redundancy.

[5] The matter was dealt with by way of a hearing, as it was considered that this was the appropriate course, taking into account the matters set out in s.399 of the Act and the views of the parties. Ms Axmann represented herself. Permission was refused for GP Network to be represented by a paid agent on the basis of fairness given that Ms Axmann, a person for whom English is not a first language, was representing herself.

Legislation

[6] The criteria that the Commission is required to consider in deciding whether a dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act as follows:

“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.”

[7] The criteria direct attention to the reason for the dismissal, the process followed in effecting it and other matters particular to the employer or the employee, relevant to the consideration of whether the dismissal was unfair.

[8] The applicant for an unfair dismissal remedy bears the onus of establishing that the dismissal is unfair. However, the starting point is whether there was a valid reason for the dismissal, which necessarily focuses attention on the validity of the reasons given by the employer at the time of the dismissal or reasons relied on by the employer to defend the application for an unfair dismissal remedy. In this sense the employer bears the onus of establishing that there was a valid reason for a dismissal. 1

[9] If the reason for the dismissal is based on the conduct of the employee, the Commission must determine that the conduct occurred. 2 A valid reason for dismissal is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”3 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts4, and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.5

EVIDENCE

[10] Ms Axmann gave evidence on her own behalf. Evidence on behalf of GP Network was given by Mr Richard Scherlowski, GP Network’s Customer Service Manager. A number of assertions made in the Form F3 Employer Response to Application for Unfair Dismissal Remedy, were not pursued in the evidentiary case presented by the Company. Ms Axmann filed her material in accordance with Directions, and unsurprisingly attempted to address a number of matters that were ultimately not relevant to those in dispute.

[11] In relation to the reasons for dismissal, GP Network submits that:

● Ms Axmann was engaged as a casual employee who worked on average 16.8 hours per week and there was no guarantee of extended employment offered to her;

● Ms Axmann was a disruptive and insubordinate employee who was difficult to manage, and at the time of her dismissal had one of the lowest call centre results ever recorded by a customer service consultant;

● Ms Axmann was formally warned on three occasions that her behaviour and attitude was not at the required standard or was significantly below the standard, and was advised what was required by her to meet the standard;

● GP Network has reviewed a number of casual positions in the past year which has resulted in a reduction of the overall workforce from 45 to 36; and

● On assessment Ms Axmann was deemed to be unsuitable for future employment as a casual employee and was terminated appropriately and in accordance with her status as a casual employee.

[12] In relation to Ms Axmann’s employment, GP Network submits that Ms Axmann was a “short term casual employee” with no guarantee of permanent tenure. GP Network also submitted that the Customer Service Manager who conducted the termination has terminated approximately 20 casual employees since his engagement in that position since October 2006 without incident or issues progressing to a complaint. The IR laws have gone through many changes during this period and relevant Managers were under the impression that a casual employee who had less than 12 months service could be terminated under the method adopted. The company’s HR/IR Policy and operational practices have since been amended to accord with the processes set out in the Act.

[13] During Mr Scherlowski’s evidence, I put the proposition to him that this submission appeared to be based on an erroneous view that the former provisions of the Act in relation to “short term casual” employees were still in effect, and that the Company had dealt with Ms Axmann on the basis that unfair dismissal laws did not apply to her. Mr Scherlowski said that the term “short term casual” was a technical description that he occasionally used, and went on to say that he did not take the step of offering Ms Axmann a support person, because he was “under the belief” that this was not required.

[14] Mr Bernhardt then interjected from the bar table and engaged in the following exchange:

“MR BERNHARDT: Deputy President, could I make a comment in relation to that particular matter because - this is one of the reasons that I was seeking to represent. I'm over that and you're over it but the issue of whether a casual is hourly hire and what processes and procedures to conduct with casuals is a vexed issue, particularly with hourly hire, probationary periods, disciplinary matters. Since that process has occurred we've reviewed how it's done and how we're going to do it.

THE DEPUTY PRESIDENT: I'm required to take into account the presence or absence of a dedicated human resource professional in this dismissal and any other matter that may be relevant and from the submission I have inferred that there was somehow a mistaken belief that because the applicant had less than 12 months service that the unfair dismissal provisions didn't apply to her. Now, that's not right. That's just wrong and it has been for some considerable period of time. We haven't had the short-term, long-term casual issue. All we've had is that if you are a small business employer then there's a minimum employment period of 12 months in which any employee can't make a claim for unfair dismissal and if you are a large employer it's six months.

I think that inherent in this submission is a misapprehension about the unfair dismissal law as it applies to casual employees of an employer with this number of employees and I'm simply seeking to explore that with the witness, which I'm perfectly entitled to do.

MR BERNHARDT: Sure.

THE DEPUTY PRESIDENT: Okay? It's in the submission so it's inherent in that submission that we thought because she had less than 12 months service we weren't caught by the unfair dismissal laws. That's what seems to be inherent in that submission.

MR BERNHARDT: There's no argument with that.”

[15] In relation to the submission that Ms Axmann was insubordinate and engaged in misconduct, Mr Scherlowski gave the following evidence about verbal warnings said to have been given to Ms Axmann in relation to her behaviour. On 5 June 2012, when Ms Axmann’s supervisor spoke to her about productivity and chatting to other staff, Ms Axmann yelled at her. Mr Scherlowski said that he spoke to Ms Axmann about her unacceptable behaviour and gave her a formal verbal warning that any further instances would result in disciplinary action, up to and including dismissal.

[16] Appended to Mr Scherlowski’s witness statement was an email from the supervisor dated 15 June 2012 which states that she spoke to Ms Axmann about disturbing other staff members and preventing them from reaching their targets by talking to them. The email indicates that this issue had been noted on several occasions during May. The email goes on to state that Ms Axmann raised her voice and yelled at the supervisor: “If you don’t want me here I will quit...Leave me alone” and that this upset other staff members and disturbed them while they were working.

[17] Mr Scherlowski sent an email to Ms Lynch and Ms Mundey stating that Ms Axmann’s response to the request from her supervisor was “disappointing” and he would talk to Ms Axmann and the supervisor “to see if the matter has been resolved”. In relation to this discussion, Ms Axmann said that the incident occurred because she went to adjust the air-conditioning without the supervisor’s approval and that she was told by the supervisor that she was at work to work and not to disturb colleagues. Ms Axmann said that she elevated her voice to the supervisor and told her that she was adjusting the thermostat and was not disturbing colleagues. Ms Axmann said that she apologised to the supervisor the next day, in the presence of Mr Scherlowski.

[18] Under cross-examination Ms Axmann agreed that she went to Mr Scherlowski’s office with the supervisor the day after the incident and understood that Mr Scherlowski warned her about her conduct. When asked to confirm that she understood she had been warned, Ms Axmann then said that she did not understand she had been warned because she did not know at the time how warnings were delivered.

[19] Mr Scherlowski said that he also gave Ms Axmann a verbal warning on 29 June 2012, over her conduct in a meeting on 28 June, which was said to be insubordinate and unacceptable behaviour. The conduct consisted of Ms Axmann pulling faces based on her views or reaction to company business that was being discussed at the meeting.

[20] Mr Scherlowski also appended an email to his witness statement dated 29 June 2012 sent to Ms Mundey and Ms Lynch. That email states that Mr Scherlowski spoke to Ms Axmann about her facial expressions during the meeting and told her that they were not appropriate and that Ms Mundey had found them offensive. Ms Axmann told him that she would like to apologise because it was not her intention to offend anybody and that her culture had a lot of facial expressions. Mr Scherlowski records his personal opinion that Ms Axmann’s apology was not genuine and states his belief that he got the message across so that she received a clear verbal warning.

[21] Ms Axmann said that when she was spoken to about this matter by Mr Scherlowski, she was surprised and said that she had not even noticed that she had done this. Under cross-examination, Ms Axmann denied making a face in the meeting, and said: “This is my face”. Ms Axmann also said that Mr Scherlowski did not warn her about this issue, but said that Ms Mundey was very offended by her facial expression. Ms Axmann maintained that she did not make a face at Ms Mundey.

[22] According to Mr Scherlowski’s evidence, a third and final warning was given to Ms Axmann on 31 January 2013 when she lost her temper and ripped up emails in Mr Scherlowski’s office during an incident on 30 January 2013. Mr Scherlowski said that he told Ms Axmann that she needed to understand that she was being given a formal verbal warning and that if there was another instance of such behaviour, disciplinary action up to and including dismissal, would result.

[23] Mr Scherlowski appended a chain of emails to his witness statement in relation to this matter. The first email sent to Ms Mundey and Ms Lynch at 7.02 pm on 30 January 2013 states that he wishes to inform them about a “minor incident” involving Ms Axmann that occurred at approximately 6.15 pm that evening. The email states that Ms Axmann sought to reduce her working hours so that she is working 3-4 nights per week instead of 5. It then goes on to state that Ms Axmann complained about emails received from a colleague, on the basis that she could not understand the emails, or their purpose.

[24] Mr Scherlowski records that he informed Ms Axmann that he could not see any problems with the emails other than some grammatical errors which may affect their clarity. Ms Axmann responded by ripping up the emails, throwing them on to Mr Scherlowski’s desk and stating: “I’ve had enough of this, and if I have to I will put in a formal complaint and even involve the Government”. According to the email, Mr Scherlowski told Ms Axmann that he would speak to the person who had sent the emails to her and did not ask questions about what she meant about involving the Government, because he did not wish to inflame the situation.

[25] At 11.37 am on 31 January 2013 Mr Scherlowski sent a further email to the same recipients, informing them that Ms Axmann had returned to his office the previous evening, just after he sent the email, and apologised for the way she acted. Ms Axmann also said that she was frustrated but if Mr Scherlowski thought that there was nothing wrong with the emails, then he should not discuss it with the person who sent them, because Ms Axmann did not want any conflict. Mr Scherlowski told Ms Axmann that she needed to maintain her composure in an office environment, and follow the proper grievance handling procedures. Mr Scherlowski also had a discussion with the person who sent the emails who confirmed that he occasionally has problems with homonyms - eg “to”, “too” and “two” but would use the spell check and proof read emails to the best of his ability.

[26] Ms Lynch responded to the email by informing Mr Scherlowski that she agreed with his actions, but that Ms Axmann needed to be told that if we have another instance, depending on the severity of the occurrence or behaviour, it may result in disciplinary action, up to and including dismissal. Mr Scherlowski responded by email at 6.39 pm, informing Ms Lynch and Ms Mundey that he had held a discussion with Ms Axmann in relation to the following:

● Her over-reaction to the emails;
● The fact that she has less than 1 years service and has had multiple issues is not a good sign;
● Her behaviour on the previous evening was a serious matter and it was not the first time that he had made a file note about that behaviour and informed the General Manager and the Human Resource Administrator;
● Ms Axmann should decide if this is the right job for her and if she wishes to leave she should, otherwise it is Mr Scherlowski’s job to settle her into the team;
● This was a final warning and a formal verbal warning and if there is another instance, depending on the severity of the occurrence or behaviour, it may result in disciplinary action, up to and including dismissal.

[27] According to Mr Scherlowski, Ms Axmann said that she understood and then asked that he check whether she had achieved her January target, and they agreed to meet again when the January results were available. The meeting ended with Ms Axmann promising to try her best to reach the target.

[28] Ms Axmann denied that this incident occurred, and in particular that she had ripped up emails and threatened to make a complaint and involve the Government. Ms Axmann said that she had a discussion with Mr Scherlowski and told him that since returning from work after Christmas, two of her colleagues were not answering emails containing questions from Ms Axmann. Ms Axmann agreed that she complained about some emails sent by one of her colleagues because he was not good at formulating emails and she had trouble understanding them. Ms Axmann said it was important that she understood the emails because the colleague in question had a role whereby he listened to her calls for quality assurance purposes and it was important when he reported something that she understood what she may have done wrong.

[29] Mr Scherlowski tendered a table said to show the percentage of target achieved by Ms Axmann, stating that her performance ranged from the second lowest to the lowest and that on four occasions Ms Axmann was lowest of the group by amounts ranging from 8% to 32%. 6 Mr Scherlowski said that following a management review of the staff numbers in the call centre, it was decided to reduce the numbers by one. Due to the fact that Ms Axmann had received three formal warnings as a casual employee, and her failure to achieve targets by “an alarming margin” Ms Axmann was selected as the casual employee whose services were no longer required.

[30] Ms Axmann said that her call statistics were 121% over the year and that this was well over the 96% that was expected. Further, there was a new evening supervisor appointed in November 2012, who made errors in weekly call statistics. Ms Axmann also said that after commissions were introduced, she received commissions every month to recognise her “over target” achievement. Further, Ms Axmann said that just prior to her dismissal she had a quality assurance meeting with Mr Scherlowski and her supervisor, who praised her work and told her to carry on.

[31] Ms Axmann underwent a probationary review on 26 June 2012, three months after commencing employment and tendered a copy of that review. The Review was conducted by Mr Scherlowski. Ms Axmann completed a section of that review rating herself as “excellent”. The comments in the box headed “Manager Feedback” are as follows:

“Marie is providing very good service to customers and despite some minor issues she has been very willing to learn from these experiences and take on board feedback. I have told Marie that I have spoken with Rudolph and he will only provide QA feedback through the matrix and we look forward to Marie continuing to provide friendly service to our customers and be a valuable member of the team.”

[32] Rudolph was the staff member about whose emails Ms Axmann had complained, and about which she had a discussion with Mr Scherlowski on 30 January 2013. Sections of the Review form in relation to Development and Training recommended for Ms Axmann and additional comments are blank.

[33] Ms Axmann also tendered emails dated 4 February 2013 from Mr Scherlowski informing her that her bonus payment for January is $678.53 in recognition of her efforts in contributing to customer retention and business revenue and congratulating her on this. A document tendered by Mr Scherlowski setting out Ms Axmann’s earnings prior to dismissal, also indicates that in December 2012, Ms Axmann received a performance bonus of $399.97.

[34] Mr Scherlowski said that Ms Axmann was paid her bonus in January 2013 despite not meeting her target “to be fair and reasonable”. Ms Axmann said that her performance was reviewed as “excellent” by Mr Scherlowski approximately a few days before her dismissal. There is no documentary evidence before the Commission regarding this review.

[35] In response to questions from the Commission, Mr Scherlowski said that targets related to the number of calls employees should make during rostered hours. Approximately 15 minutes is allowed for each call, and five minutes for a “no answer” call result. The 100% benchmark is met when employees achieve as many calls as expected. The benchmark for each individual is based on their rostered hours. Sometimes employees have a phone script and sometimes they are asked to create a conversation with customers with a recommended talk time of 5 - 12 minutes. Employees are aware of those guidelines and the target is set at an achievable level, reflected in the fact that most team members achieve their targets. There is also a quality assurance program where trained and experienced staff listen to randomly selected calls and give advice about those calls, based on guidelines.

[36] Under cross-examination Mr Scherlowski said that the table he tendered was in relation to all staff in the customer service department and the formula is adjusted for the number of hours each staff member is rostered. Mr Scherlowski also agreed that in January 2013 Ms Axmann questioned the statistics and asked to sit down with Mr Scherlowski to compare her handwritten figures with the Company’s computer records. Mr Scherlowski said that this did not occur because Ms Axmann was dismissed, but his check of the figures tendered to the Commission established that they were correct.

[37] Ms Axmann said that upon arriving at the premises of GP Network on 7 February 2013 she was summoned to a meeting with Mr Scherlowski, where she was “dismissed on the spot” 7. Ms Axmann’s evidence is that at this time she was not given any “valid reason relating to [her] capacity or conduct at the company”8. The Applicant stated that she was handed a letter by Mr Scherlowski that was signed by Ms Jaclyn Mundey, General Manager. A copy of this letter, dated 5 February 2012, relevantly stated:

“Dear Marie

Termination of Casual employment

Thank your (sic) for your services in the casual German-speaking Customer Service Consultant role in the Customer Services Team.

I wish to advise that your services as a German-speaking Customer Service Consultant are no longer required, effective immediately.

...

Marie, we wish you success in identifying alternate employment and again thank you for your contribution to the company.”

[38] Ms Axmann said that Mr Scherlowski “casually said” that the Applicant “did not fit in with the team, never have fitted in with the team and never will fit in with the team”. Mr Scherlowski denied making this comment but said that he did tell Ms Axmann that he and the General Manager had decided that it was “not the right job” for her.

[39] In Submissions GP Network states that it was put to Ms Axmann at the termination meeting that she was “employed as a casual employee and had been employed for less than 12 months, and there had been numerous significant issues with her performance and behaviour during this period and the company was within its legal rights to tell her that her services were no longer required”.

[40] Ms Axmann asserts that prior to the events of 7 February 2013 she had not received any previous counselling or disciplinary steps in relation to her conduct or productivity. Ms Axmann said that as a result of the lack of any prior warnings it did not cross her mind to request a support person be present at the meeting of 7 February 2013.

[41] Ms Axmann also made a number of assertions about bullying and said that on 23 January 2013 she approached Mr Scherlowski in relation to a complaint she was making alleging bullying and intimidation. Ms Axmann said that Mr Scherlowski “laughed off” her complaint. Mr Scherlowski said that Ms Axmann had not complained about bullying during her employment.

[42] In response to a question from the Commission, Mr Scherwolski said that the numbers of casual employees in the German speaking group had been reduced by one after Ms Axmann left the Company. In response to a question about whether Ms Axmann was replaced, Mr Scherlowski said:

“Not immediately; not immediately, no.

Okay. So three weeks later someone was employed in that German language group?---Yes. We subsequently made a decision that we would put someone in that language group but we also removed someone from that language group shortly thereafter as well and we were aware of that. We had internal confidential discussions about the restructure that was coming up. We made that decision and, like I said, we have a fluctuating workforce. We constantly review whether we need all the casual employees that we have. She was one of lowest-performing employees. She had behavioural issues and it was a combination of her behavioural issues and the fact that we were reducing the workforce.”

[43] Ms Axmann also asserted that an email was sent by Ms Lynch on the day Ms Axmann was dismissed, asking if employees knew someone to replace her. Mr Scherlowski said that he had not sent such an email and could not recall whether it had been sent by anyone else within the Company. Further Ms Axmann asserted that new employees are subject to a two week training period, and that the employee who replaced her would have been subject to that training period, so that the replacement employee was employed almost immediately after her dismissal.

[44] In her written outline of submissions, Ms Axmann asserted that she was not a casual employee and stated that she would seek a ruling from the Commission to that effect. Ms Axmann put no evidence before the Commission in relation to this assertion.

CONSIDERATION

Was there a valid reason for the dismissal related to Ms Axmann’s capacity or conduct?

[45] If the matters raised by GP Network in these proceedings in relation to Ms Axmann’s conduct and work performance occurred, as described by Mr Scherlowski, GP Network would have had a valid reason to dismiss Ms Axmann. The difficulty is that the entirety of the dealings between GP Network and Ms Axmann were affected by the erroneous belief held by various managers of the Company that a casual employee with less than 12 months service, does not have a remedy for unfair dismissal and can be dismissed on the basis that the employer has “the right to decide which casuals they employ and which casuals they let go”. This view was maintained by Mr Scherlowski and Ms Lynch, who conducted the case on behalf of GP Network.

[46] GP Network is a large employer and engages a consultant to provide workplace relations advice. It is surprising that Managers of GP Network could have reasonably held such a belief, and continued to maintain that view in the hearing of Ms Axmann’s unfair dismissal application. In my view, this belief was the reason for the dismissal rather than the relative seriousness of the incidents themselves. While I accept that there were issues with Ms Axmann’s conduct and work performance, I do not accept that either collectively, or individually they were of such seriousness as to provide a valid reason for dismissal.

[47] In relation to the first incident where Ms Axmann “elevated her voice” or “yelled” at her supervisor - depending on whose version is accepted - it is clear that Mr Scherlowski formed a view that Ms Axmann’s behaviour was “disappointing” and that he would speak to both parties to see if the matter had been resolved. Ms Axmann apologised for her behaviour in a meeting with the supervisor and Mr Scherlowski. In short, Mr Scherwolski’s description of this incident in his contemporaneous email, does not indicate that it was a matter that could be considered as a valid reason for dismissal.

[48] The incident where Ms Axmann was alleged to have made a face which caused offence to Ms Mundey, during a meeting on 28 June 2012, is also an incident that in my view is not of such significance that it could provide a valid reason for dismissal. Ms Axmann denied that she made a face and offered to apologise. Mr Scherlowski states that he did not believe that the apology was genuine. There is no evidence about why Mr Scherlowski formed this view or why he did not accept Ms Axmann’s offer to apologise to Ms Mundey. Ms Mundey did not give evidence about the matter.

[49] The evidence about the third incident is difficult to reconcile. Mr Scherlowski states that during a discussion in which Ms Axmann was complaining about confusing emails received from a colleague (Rudolph). Ms Axmann ripped up the emails and threw them on his desk and then threatened to make a formal complaint and involve the Government. The evidence establishes that this discussion occurred on 30 January 2013. Mr Scherlowski further states that he viewed this matter as serious and gave Ms Axmann a warning about it. This evidence is at odds with the email chain between Mr Scherlowski, Ms Mundey, Ms Lynch and Ms Axmann’s supervisor in relation to the incident.

[50] The first email sent by Mr Scherlowski at 7.02 pm on 30 January 2013 states that the incident occurred at 6.15 pm on that date. That email also states that it was a “minor incident” and occurred in the context of another discussion about Ms Axmann reducing her working hours. Mr Scherlowski also records that there are some grammatical errors in the emails the subject of Ms Axmann’s complaint that may affect their clarity and that he told Ms Axmann that he would speak to Rudolph (the author of the emails) about them. Mr Scherlowski’s email also states that Mr Scherlowski did speak to Rudolph about the issues and established that Rudolph had some issues with homonyms, and would proof read his emails in future.

[51] Mr Scherlowski sent a further email at 11.37 am on 14 January 2013 stating that Ms Axmann had apologised for the incident and was prepared to drop the matter if Mr Scherlowski thought that there was nothing wrong with the emails. Mr Scherwolski also states that he told Ms Axmann that she should follow the grievance procedure. It is clear from this email that Mr Scherlowski thought that the issue was resolved at that point. At no point does Mr Scherlowski indicate any real concern with Ms Axmann’s conduct in relation to this matter.

[52] It is only after a direction from Ms Lynch in an email sent at 11.52 am that Mr Scherlowski states that he met with Ms Axmann to discuss the matter further and to give her a warning. It is also the case that Ms Axmann completely denies that she ripped up the emails. In all of the circumstances, I am unable to be satisfied that this was an issue which was a valid reason for Ms Axmann’s dismissal.

[53] I accept that the three incidents provided a basis for Ms Axmann to be warned about her conduct and work performance, and that a final warning may have been justified. However at the point Ms Axmann was dismissed, the incidents were not of sufficient severity to justify dismissal on the basis of conduct or work performance.

[54] I am also unable to accept that Ms Axmann’s work performance in respect of failing to meet her targets was sufficiently serious to justify her dismissal. The assertion by GP Network that bonuses were paid to Ms Axmann because it was fair and reasonable to do so, is at odds with the fact that she was dismissed for alleged poor work performance. Further, there is nothing in Ms Axmann’s formal performance review to indicate that there were any issues with her performance sufficiently serious to justify dismissal. Rather, the evidence establishes that there was some cause for concern that may have justified Ms Axmann being issued with a final warning, given the other conduct issues about which she had been spoken to.

[55] Even allowing for the erroneous view of GP Network about the rights of casual employees to seek unfair dismissal remedies, the failure on the part of GP Network to give written warnings to Ms Axmann is indicative that the matters of concern relating to her conduct and work performance, were not sufficiently serious to constitute valid reasons for dismissal, at the point Ms Axmann was dismissed.

[56] I am also of the view that the desire to reduce by one, the number of casual employees in the German speaking group, was not the reason for Ms Axmann’s dismissal. GP Network replaced Ms Axmann within a very short space of time, and in the face of uncontested evidence from Ms Axmann about the two week training period that the replacement employee would have been subjected to, it is more probable than not that GP Network replaced Ms Axmann almost immediately after dismissing her.

Was Ms Axmann notifed of the reason for her dismissal?

[57] Regardless of whose version of the dismissal meeting is accepted, it is clear that no details of the reasons for dismissal were put to Ms Axmann, and the letter notifying her of the dismissal was of no assistance given that it provided no reason for the dismissal. It is clear from Mr Scherlowski’s evidence that he was of the view that no reason was required to be given, because Ms Axmann was a casual employee. Accordingly I do not accept that Ms Axmann was notified of the reason for her dismissal.

Was Ms Axmann given an opportunity to respond to any reason related to her capacity or conduct?

[58] Ms Axmann was dismissed at a meeting on 7 February 2013. She was not put on notice that the purpose of the meeting was to discuss her performance or that it may result in her dismissal. I do not accept that Ms Axmann had any real opportunity at that meeting to respond to reasons for her dismissal, in circumstances where none were provided to her.

[59] Further, the letter of dismissal was prepared in advance of the meeting and contained no details of the reasons for the dismissal. The fact that Ms Axmann was handed that letter during the meeting would have been of no assistance at all to her in responding.

[60] While I have no doubt that Mr Scherlowski did raise some performance and behavioural issues in earlier meetings with Ms Axmann, on balance, I do not accept that they were discussed in a way that Ms Axmann would reasonably have understood that her employment was in jeopardy if she failed to provide a reasonable response or to address the matters.

[61] Accordingly, I am unable to accept that Ms Axmann was given an opportunity to respond to the reasons for her dismissal.

Was there an unreasonable refusal by GP Network to allow Ms Axmann to have a support person present to assist at any discussions relating to dismissal?

[62] Ms Axmann did not seek to have a support person present at the meeting at which her dismissal was effected, and there was no refusal to allow her to have such a person present. However, Ms Axmann was given no warning that the meeting was about dismissal, and said that if she had been aware of this she would have taken a support person to the meeting.

[63] Ms Axmann’s first language is not English and in my view the failure to offer her a support person, while not a refusal for the purposes of s.387(d), is a matter that can be taken into account under s.387(h) in weighing up whether the dismissal was unfair.

Was Ms Axmann warned about any unsatisfactory performance before the dismissal?

[64] I accept that there was some level of discussion with Ms Axmann about unsatisfactory work performance. However, I am unable to accept that the discussions would reasonably have been understood by Ms Axmann as “warnings” or that she could reasonably have known that her employment was in jeopardy as a result of unsatisfactory work performance. In short, if Mr Scherlowski could go to the trouble of sending emails to the Human Resource Manager about Ms Axmann’s work performance, he could have documented those issues in a warning letter and provided that information to Ms Axmann. The simple fact of the matter is that Mr Scherlowski did not believe that this was required because of Ms Axmann’s status as a casual employee.

[65] The situation is further confused by the fact that Ms Axmann was given performance bonuses at the time that GP Network contends that future of her employment was being considered and adverse views were being taken about her conduct and work performance. Further, Ms Axmann received a performance review in positive terms, in June 2012 and no performance review adverse or otherwise was in evidence after that date.

[66] In my view, if the issues were so serious that Ms Axmann’s employment was in jeopardy, it would be expected that she would have been warned in a way that left open no argument about whether or not the warning was given. In the present circumstances, Ms Axmann disputes that she was given warnings and in the context of the payment of performance bonuses and the positive performance review, I am unable to be reasonably satisfied that Ms Axmann was warned about her work performance in a way that clearly set out the issues; the required level or standard of performance; the steps that Ms Axmann was expected to take to improve her performance; that it would be further reviewed; and that failure to address these issues would result in dismissal.

The degree to which the size of the employer’s enterprise and the absence of dedicated human resource management specialists would be likely to impact on the procedures followed in effecting the dismissal

[67] GP Network is a large employer with some 80 employees. It has a dedicated human resource manager and engages an external consultant to provide it with advice about human resource management matters. The Company employs a large number of casual employees and it is to be expected that this advice would include the circumstances in which casual employees are protected from unfair dismissal, and the steps which are required to be taken to ensure that the requirements of the Act are met with respect to dismissal of all employees, including those employed on a casual basis.

[68] In the case of small business with limited capacity to engage dedicated human resource managers or external advisors, some allowance may be made for procedural deficiencies in effecting a dismissal. In the present case, given the size of GP Network and its resources, there is no basis for considering the impact of the absence of those resources may have had on the procedures followed in effecting Ms Axmann’s dismissal.

CONCLUSIONS

[69] After weighing the evidence and considering the criteria in s.387, I have concluded that Ms Axmann’s dismissal was unfair. It was substantively unfair because the reasons for the dismissal were not sufficiently serious to justify dismissal. The dismissal was also procedurally unfair and it is apparent that GP Network erroneously believed that because of Ms Axmann’s status as a casual employee, there was no requirement to afford her procedural fairness. The criteria in s.387 are directed at both substantive and procedural fairness, and consistent with the objects of the Act, at ensuring that both the employer and the employee are accorded a fair go all around. In the absence of a valid reason for dismissal, any failure to provide procedural fairness is of greater significance than would be the case if it was established that the employee had engaged in misconduct such that there was a valid reason for dismissal.

[70] In Allesch v Maunz 9Justice Kirby set out the principle, that a decision maker (in that case on exercising public power) must afford a person whose interests will be adversely affected by the decision, the ability to present relevant information and material before a decision is made. Citing the earlier decision of Byles J in Cooper v Wandsworth Board of Works10his Honour observed that:

“Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden”. 11

[71] There is nothing novel about procedural fairness or the requirement to accord it to an employee who is facing dismissal, and in my view, the sentiment expressed by Justice Kirby in that case is relevant to the criteria in s.387 of the Act. To the extent they go to procedural fairness, those criteria are directed at ensuring that an employee facing the ultimate sanction of dismissal is notified of the reason and has an opportunity to properly respond to allegations about conduct or capacity, or was warned about unsatisfactory performance so that he or she had an opportunity to address issues in that regard.

[72] GP Network cites the decision in Whyte v Ullrich Aluminimum Pty Limited 12 as authority for the proposition that not every procedural deficiency will result in a finding that a dismissal was harsh, unjust or unreasonable. However, the facts in Whyte were that the employer had given three formal written warnings to the employee in relation to specific deficiencies in his performance, advising him of the required standard and putting him on notice that he needed to improve his performance. The performance issues in that matter were more significant than the matters raised by the GP Network in relation to Ms Axmann, and involved serious actual and potential loss to the employer’s business.

[73] In the present case, while it is accepted that GP Network raised various issues with Ms Axmann, they were not articulated in a way that would reasonably have made it clear to Ms Axmann that she had been warned about her conduct and work performance, and in circumstances where Ms Axmann had received performance bonuses and a positive performance review. These issues were not serious and in relation to Ms Axmann pulling a face, were almost trivial. The performance documentation that was in evidence before the Commission does not make specific reference to these incidents and gives the impression that Ms Axmann was meeting the expectations of her, in so far as her substantive work was concerned.

[74] As required by s.390 of the Act, I am satisfied that Ms Axmann was protected from unfair dismissal and that she has been unfairly dismissed. Ms Axmann should have a remedy for her unfair dismissal. Ms Axmann does not seek reinstatement and on that basis I am satisfied that it is not appropriate and that an award of compensation should be made. The remedy of compensation is dealt with in s.392 of the Act in the following terms:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWA considers relevant.

Misconduct reduces amount

(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[75] There is no evidence that an order for compensation will affect the viability of GP Network. Ms Axmann has just under 12 months service with the Company. Considering the circumstances of the case, including the factors in s.392 of the Act, I have determined that Ms Axmann should be compensated for her unfair dismissal by the payment of 8 weeks wages. In determining compensation, there is no evidence upon which I could make a finding that Ms Axmann was employed on any basis other than that of a casual employee.

[76] I also accept that evidence provided by GP Network in relation to Ms Axmann’s average weekly hours of work and that those hours were an average of 16.8 hours per week in the 8 weeks prior to Ms Axmann’s dismissal.

[77] Ms Axmann maintains that this average is not accurate because it includes the Christmas period. I do not accept that submission. In my view it is appropriate to adopt that average because is reflects the reality of casual employment, including that those hours could have fluctuated even if Ms Axmann had remained in employment for the two month period covered by the compensation assessed in this decision. I also accept that Ms Axmann’s hours of work were subject to fluctuation at her request on occasions when she wished to work less hours for personal reasons.

[78] Despite the unfairness of her dismissal, I am not able to conclude that Ms Axmann would have remained in employment for a period of longer than 8 weeks from the date she was dismissed. In this regard, I have taken into account the fact that there were issues with Ms Axmann’s conduct and work performance and that these might have provided a valid basis for her dismissal had she been properly warned and put on notice that her employment was in jeopardy.

[79] I am also of the view that there is every likelihood that Ms Axmann would not have responded to a warning by improving her conduct and work performance, notwithstanding that she had previously apologised for some of her behaviour when it was discussed with her. I base this view on my observation of Ms Axmann’s demeanour in the hearing of her unfair dismissal application and reading all of the material that she filed.

[80] Further, I have also taken into account that GP Network might have undertaken downsizing in the months after Ms Axmann’s dismissal and that her employment could have ended for reasons of redundancy. It is also the case that had Ms Axmann being properly warned about inappropriate conduct or her productivity, these matters might have provided a basis upon which she was selected for redundancy, and subject to the requirements in s.389 being met, Ms Axmann could have been excluded from bringing an unfair dismissal application.

[81] Accordingly, I have concluded that had Ms Axmann remained in employment for the two month period, she would have earned a further amount of $3,360.00 based on 16.8 hours per week at the hourly rate of $25.00.

[82] In relation to mitigation, Ms Axmann found alternative employment within five months of the date of her dismissal and there is no evidence upon which I could be reasonably satisfied that Ms Axmann failed to mitigate the loss of her employment. The alternative employment was not obtained during the period covered by the compensation amount I award, and accordingly I do not intend to adjust it for these earnings or for the amount earned between the making of the order and the payment of compensation.

[83] Given that I am not satisfied that Ms Axmann engaged in misconduct sufficient to justify her dismissal, I make no adjustment on that account. I am also of the view that Ms Axmann’s contribution to her dismissal has been adequately recognised by the fact that I have limited her compensation to an eight week period on the basis of my view that her employment would likely not have continued past that period.

[84] The amount of $3,360.00 less taxation at the appropriate rate is to be paid to Ms Axmann within fourteen days of the date of this Decision. An Order to this effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Ms M. Axmann on her own behalf.

Ms C. Lynch and Ms J. Mundey on behalf of the Respondent.

Hearing details:

2013.

Coolangatta:

July 17.

 1   Culpeper v Intercontinental Ship Management Pty Ltd (2004) 134 IR 243 at 249.

 2   Edwards v Giudice (1999) 94 FCR 561; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201; Sherman v Peabody Coal Ltd (1998) IR 408; Australian Meat Holdings v McLauchlan (1998) 84 IR 1.

 3   Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 4   Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

 5   Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

 6   Exhibit 5.

 7   Exhibit 1 at 5.1(a).

 8   Exhibit 1 at 5.1(a).

 9 (200) 203 CLR 172.

 10 (1863) 14 CB (NS) 180 at 195 [143 ER 414 at 420].

 11 (2000) 203 CLR 172 at 184.

 12   PR974269 per Hamberger SDP.

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