Marsha Vescio v Torch Publishing Company Pty Ltd

[2011] FWA 5216

[2011] FWA 5216

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marsha Vescio
v
Torch Publishing Company Pty Ltd
(U2010/15288)

COMMISSIONER MCKENNA SYDNEY, 10 AUGUST 2011

Application for unfair dismissal remedy

[1] Marsha Vescio (“the applicant”) has filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (“the Act”) with respect to her dismissal by Torch Publishing Company Pty Ltd (“the respondent”). The respondent is principally involved in the publication of free suburban newspapers and business directories. Until her dismissal in December 2010, the applicant had been employed by the respondent as its group sales/marketing manager for some three-and-a-half years.

[2] It was common ground the applicant was regarded as satisfactory in the performance of her sales and marketing role. It was also common ground the applicant had a good relationship with the respondent’s general manager, who is a director of the family-owned publishing business. The dismissal arose amid allegations and concerns about the applicant’s broader, employment-related conduct. Commencing in 2010, the general manager began to form some preliminary concerns about certain advertisements in the respondent’s publications, including the placement of advertisements which had directly and indirectly involved the applicant and her family. A further issue then arose concerning a disputed advertising account involving a lounge suite business and the means by which the account was to have been satisfied. From around this time, the general manager, by then becoming concerned about irregularities, “started monitoring all the advertising very carefully”. As the applicant’s submissions noted, in the end, the respondent “created an environment where employees were encouraged to bring forward” their (numerous, it transpired) complaints about the applicant. As a result, a number of further conduct-related issues began quickly to come to the attention of the respondent’s general manager, relevantly culminating in allegations by a number of employees about matters including, but not limited to, the applicant’s allegedly inappropriate dealings with them; the applicant’s allegedly inappropriate dealings with businesses which had advertisements in the respondent’s publications; and the applicant’s allegedly inappropriate acquisition of certain goods, services, vouchers and the like received from businesses which had advertisements in the respondent’s publications.

[3] On 1 December 2010, the applicant was given a letter outlining the respondent’s concerns, as they were known at that time. The applicant did not attend meetings that were scheduled and then rescheduled by the respondent to discuss the allegations; the applicant consulted a medical practitioner and obtained a number of successive medical certificates after the letter was given to her, with the last certificate expiring on 17 December 2010. The evidence suggested that, during this absence, the applicant contacted or attempted to contact a number of employees and clients. On or around 7, 9 or 10 December 2010 (the date which is not entirely clear from the face of the respondent’s letter advising of the dismissal, being correspondence which bears all three dates), the applicant was summarily dismissed. For his part, the general manger did not consider the applicant was unfit for work at all, given matters such as her attempted contact with employees. The general manager determined to act “on the information” that was at hand and to dismiss the applicant while she was on certified sick leave. The dismissal proceeded despite representations from the applicant’s former solicitors that the applicant was presently unwell, but that she intended to respond to the allegations when she was well. By letter dated 10 December 2010, the respondent advised the applicant of the following reasons for dismissal: “The reasons for ending your employment are serious misconduct in that your conduct was wilful and deliberate and inconsistent with your contract of employment and caused damage to the reputation, viability and profitability of the Company”.

[4] On 20 December 2010, the applicant filed this application seeking an unfair dismissal remedy. There are no preliminary jurisdictional or other such issues arising for determination; only the determination of the substantive claim of unfair dismissal arises.

[5] The applicant gave evidence on her own behalf. The respondent adduced evidence from several employees and from the proprietors of two businesses who were advertisers in the respondent’s publications. Part-way during the hearing, it emerged that the respondent had already referred certain matters involving the applicant to the New South Wales police. While it seems that investigations may be dormant, there was no evidence confirming that any police investigations thereto have concluded. Despite my concern that I had not been advised prior to the commencement of the hearing that an investigation by the police apparently had not formally been concluded, and despite my serious misgivings about proceeding further with this hearing against the background of that belated information, Mr J Young of counsel for the applicant and Mr J Murphy of counsel for the respondent each submitted that the hearing before Fair Work Australia should not be adjourned.

[6] The applicant seeks an unfair dismissal remedy on the basis she was harshly, unjustly and unreasonably dismissed in that the dismissal was, compendiously described, substantively and procedurally unfair. The respondent’s evidence and submissions focussed primarily on the evidence as to ten allegations, or groups of allegations, any one of which, it was submitted, justified summary dismissal for serious and wilful misconduct.

[7] Given the comparative informality with which much of the evidence was adduced in the proceedings before Fair Work Australia, coupled with my understanding that a police investigation, on referral from the respondent, has not formally concluded, I have decided to narrowly restrict my findings and observations to two allegations of misconduct in concluding that the applicant has not established a case that would lead me to intervene in the respondent’s decision to dismiss.

Consideration

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)

[8] Although the respondent relied on a number of allegations against the applicant in the proceedings in defending the application, there are two matters which, independently or in combination, lead me to accept the respondent’s submissions that the dismissal should not be disturbed. While the detail of the matters was not, apparently, known fully to the respondent at the time of the dismissal, the matters to which I will now refer may be viewed as being consonant with the general allegations of misconduct initially canvassed in the letter from the respondent to the applicant dated 1 December 2010.

[9] As to the first matter, the evidence established to my satisfaction that the applicant, in her role and capacity as an employee of the respondent, had dealings with the proprietor of a hairdressing business which were for the applicant’s own personal benefit and which simultaneously acted to the detriment of the respondent. Shortly stated, the evidence of the proprietor in question was that the applicant had approached her with a proposal about facilitating free advertising “from time to time” in the respondent’s publications and that the applicant would, in return, personally receive free hairdressing services. The proprietor hitherto had paid for advertisements in the respondent’s publications; until contacted by the applicant, the proprietor had otherwise decided to discontinue such advertising due to cost/benefit considerations for her small hairdressing business. The applicant’s evidence contended she received the free hairdressing services as a result of her close relationship and friendship with the proprietor; and that she had made offers to pay the proprietor for the hairdressing services, but such offers had been refused by the proprietor. The applicant’s contentions in such respects were contradicted in the evidence of the proprietor in question, whose evidence I relevantly preferred and accepted in relation to contested matters. Further, the applicant has not had any free hairdressing services since her employment terminated with the respondent, despite the applicant’s contention that the provision of such services stemmed only from the personal relationship that she developed with the proprietor rather than from the facilitation of free advertising. As the proprietor’s evidence noted when the following question was put and answered in the proceedings:

“Well, those occasions, certainly in November 2007, it was your decision not to charge her. Do you agree--- No. I don’t agree. I mean, that’s my business. I do charge, so - you don’t do a free hair for no reason.”

[10] I accept the respondent’s characterisation of the evidence of the proprietor as being inherently credible and that she presented as a witness of credit. As to that, I note also that, as English is not her first language, there was initial misunderstanding of some questions put to her. Despite propositions to the contrary, the evidence does not allow any conclusion that the proprietor was, effectively, intimidated by the respondent into giving the evidence as to her dealings with the applicant. To the extent that the free advertising in question did not necessarily bear the authorisation of the applicant herself in the respondent’s records, I am satisfied the applicant used other employees as the conduit for the preparation of advertisement design and placement of the free advertisements for the hairdressing business in the respondent’s publications. There was no reason other than directions emanating from the applicant to the employees concerned that plausibly would explain the free advertising services for the hairdressing business over the period relevantly in question.

[11] I turn now to the second matter. In its activities, the respondent directly and indirectly supported a number of charities, but primarily a cancer charity. The respondent’s general manager was closely associated with that cancer charity, as he was a former office-holder in its local branch. Among other matters, those activities involved the respondent’s employees, at the direction of the general manager, approaching local businesses to seek donations of free or discounted goods and services for purposes such as charity raffles and prizes. In return for that charitable goodwill by such businesses, arrangements typically, but not always, were made for free or discounted advertising in the respondent’s publications, or free editorials and credits. It was common ground the applicant had been involved in obtaining goods, services and vouchers from businesses on the basis these would be used for charitable purposes.

[12] There was evidence as to the applicant’s direct and indirect involvement in the solicitation and collection of a sizeable body of various donations from businesses, as well as evidence generally supportive of the conclusion that only some of the goods and services so donated were directed to the cancer charity that the respondent supported. Apart from noting that some of the goods and services have not properly been accounted for, I make no findings, save as to one item, as to where some of the donations were directed. The last known whereabouts of that particular donated item, namely a small television, was that it was posted to one of the applicant’s family members, a nephew whose first name is “Joseph”. The nephew, who resides in Tasmania, was formerly employed by the respondent. It is common ground that a package, containing foodstuffs purchased by the applicant and some other employees, was posted to the nephew in Tasmania in what the applicant described as a “care package”. While it was common ground in the proceeding that a package of food had been posted to the applicant’s nephew with the involvement of the respondent’s employees (and that nothing turns on the package of food sent to the nephew in terms of this application), there was, however, sharp dispute about another package said to have been packed and posted to the applicant’s nephew, on the instructions of the applicant, being a package alleged to have contained a small television.

[13] In her evidence, the applicant denied any knowledge of a package posted to her nephew containing a small television and also stated that she would not send a television in the post, whereas the respondent’s evidence contended that, resulting from the applicant’s instructions, a television was packed and posted to the applicant’s nephew.

[14] There was evidence from an employee that he had wrapped a box containing a 19 inch television in brown paper, affixed a label addressed to the attention of the applicant’s nephew, was given postage stamps, and attended Condell Park post office to post the package. Another employee gave evidence that she had also been involved in, or had observed, bubble-wrapping the television, had arranged for the address label to be generated (based on details provided by the applicant) and telephoned the post office about the costs of postage.

[15] As to a packaged television for the nephew, the evidence included confirmation as to the generation of an address label for the nephew, which was time-coded in the respondent’s computer records at 10.53am on 24 June 2010. The applicant’s denials in her evidence of any knowledge concerning the posting of this particular television to her nephew and her assertion that she would not, in any event, post an item such as a television were undermined by the evidence of a text message. The text message in question is recorded on what was, apparently, the applicant’s former work-issued iphone, being a device displaying a photograph of the applicant’s children. The text message bears the same date as the computer records concerning the generation of the address label for the nephew, namely 24 June 2010. The text message reads:

“Sent to Bro on 24/06/2010 2:31:56 PM

Joes tele was express posted today” [Bold in original]

[16] Mr Murphy submitted there was a comfortable inference that “Bro is her brother, the father of her nephew”, being the nephew named Joseph. The text message evidence was tendered comparatively late in the proceedings via one of the respondent’s witnesses had then only recently seen the message for the first time. The message was not contained in the evidence filed pursuant to the directions for hearing, and nor was it put to the applicant. I have weighed that accordingly, noting that the applicant was not examined/recalled about the text message.

[17] Having considered the evidence, I am satisfied, to the requisite standard here applicable, that the applicant did cause an instruction to be given that a television, donated to the respondent by a local business ostensibly for use in charitable purposes, be packaged and posted to her nephew in Tasmania. In so concluding, I accept the evidence of the two employee witnesses who were involved in the posting, while nonetheless also noting there were some discrepancies in their evidence as to who performed which tasks in relation to some of the preparatory steps in the posting, among other matters. I tend to attribute this to the fallibility of memory as to the specific detail, rather than discounting the central content of the evidence as to their involvement in packing and posting the television.

Whether the person was notified of that reason

[18] As I have noted earlier, the letter dated 10 December 2010 dismissing the applicant gave the following advice: “The reasons for ending your employment are serious misconduct in that your conduct was wilful and deliberate and inconsistent with your contract of employment and caused damage to the reputation, viability and profitability of the Company”. Thus, the evidence indicated that the applicant was notified of the reason for the dismissal, albeit it must also be observed that a number of matters relied on by the respondent in the proceedings were not within the full knowledge or understanding of the respondent at the time the dismissal was effected. As to this, Mr Young submitted, aptly I thought, that new allegations have been raised and others were either “refined of discarded”. I have considered the fact that all the matters on which the respondent ultimately relied in these proceedings when earlier notifying of the reason for the dismissal apparently were not within the full knowledge and understanding of the respondent’s management at the time of the dismissal and, therefore, were not specifically identified in the initial letter dated 1 December 2010 outlining certain allegations.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[19] While the applicant was given the opportunity to respond to the allegations against her (such as they were then known to the respondent), she was given only short, perhaps unreasonably short, notice of the requirement to attend a meeting for that purpose. Thereafter, the applicant was then absent from work on medically-certified sick leave. The dismissal proceeded, somewhat peremptorily, without a meeting actually ensuing which would have allowed the applicant to respond in person or in writing, with the dismissal occurring on a date the applicant was absent from work under cover of a medical certificate. Moreover, it appears there were certain irregularities as to dates on the face of documentation forwarded to the applicant around the time of the dismissal, allowing for some question as to whether the decision to dismiss had been made prior to the latest deadline the respondent had given to the applicant for the provision of her response to the allegations.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[20] In the letter dated 1 December 2010, the respondent informed the applicant that she could be accompanied or represented at the meeting that day, but that meeting and rescheduled meetings did not, in the end, proceed. The applicant subsequently instructed solicitors in connection with the correspondence she received from the respondent. The dismissal was effected prior to any discussions with assistance from her solicitors, despite certain representations having been made on the applicant’s behalf by those solicitors in a letter dated 9 December 2010.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[21] The respondent’s decision to dismiss the applicant did not arise from performance-related issues. The decision was related to the respondent’s conclusions as to alleged, serious misconduct.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[22] The respondent was described by its general manager as “a multimillion dollar company with 90 staff”.

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

[23] The respondent did have any in-house industrial relations personnel, but apparently obtained advice from an external industrial relations consultant in connection with the dismissal of the applicant. That is, the general manager contacted the consultant about the applicant prior to the letter dated 1 December 2010.

Any other matters that FWA considers relevant

[24] While the evidence and submissions addressed a wide range of matters, I have, for the reasons outlined earlier, determined to restrict my findings to two particular matters. Given the import of my findings as to those two matters, it is not necessary to traverse other relevant matters.

Conclusion

[25] On my consideration of the evidence and submissions, the applicant has not established a case warranting the discretionary intervention of Fair Work Australia in the respondent’s decision to dismiss. The evidence to which I have referred as to the hairdressing and the small television support Mr Murphy’s submission that the applicant engaged in serious and wilful misconduct involving the abuse of her position and that such misconduct constituted a valid reason for the dismissal. The procedures that the respondent adopted in relation to the dismissal were, I accept, ultimately procedurally somewhat defective. However, the nature of the procedural defects disclosed on the evidence, and considered in context, do not lead me to the conclusion that the applicant should otherwise have an unfair dismissal remedy in her favour. Based on the evidence in the proceedings, the respondent would have had reasonable cause to effect a dismissal on what was before it at the time of the dismissal and, certainly, on the basis of the matters which were later the subject of the evidence in these proceedings. Even if I had been minded to make an order for compensation with respect to any procedural defect (which I am not), any such order must assessed in the context of s.392(3) of the Act. On the basis that misconduct reduces the amount of compensation, I would reduce any such (notional) amount to nil given the applicant’s misconduct.

[26] The application is dismissed. An order thereto has been issued in conjunction with the publication of this decision.

COMMISSIONER

Appearances:

J Young of counsel for Marsha Vescio

J Murphy of counsel for Torch Publishing Company Pty Ltd

Hearing details:

Sydney

25, 26 May; 16 June; 11 July 2011.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR513198>