Mellissa Moody v Delstrat Pty Ltd as trustee for Delstrat Administration Trust

[2014] FWC 7502

[2014] FWC 7502

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mellissa Moody
v
Delstrat Pty Ltd as trustee for Delstrat Administration Trust
(U2014/4636)

DEPUTY PRESIDENT MCCARTHY PERTH, 30 OCTOBER 2014

Application for relief from unfair dismissal.

[1] An Unfair Dismissal Application (the Application) was lodged by Ms Mellissa Moody (the Applicant) claiming that she was unfairly dismissed from her employment with Delstrat Pty Ltd as trustee for Delstrat Administration Trust (the Respondent). The Respondent lodged an Employer Response to the Application (the Employer Response) asserting that the Applicant had not been an employee of the Respondent.

[2] I conducted a conference and issued Directions on 23 April 2014 requiring the lodgement of witness statements and submissions. The matter was heard on 2 October 2014. Both the Applicant and the Respondent relied on the witness statements and other documents lodged and did not call any witnesses.

[3] The Respondent presented no evidence in support of the contention in the Employer Response. Indeed it was unclear whether the Respondent had continued that objection. The various statements lodged by the Respondent referred to a role the Applicant had been employed for in the “WA Building Company”. A statement was lodged by a Ms Laurel Lewis, Accounts Manager, (presumably meaning the Accounts Manager for the Respondent). Ms Lewis stated that she was responsible for the supervision of junior accounts staff in nine Divisions of the Respondent that were identified. The WA Building Company was not one of the Divisions named. However, Ms Lewis also declared that the Applicant had been employed in duties for at least three of the Divisions named. Statements were also lodged by Mr David Basso, Manager; Ms Tracy Joughin, WA Chief Financial Officer; and Ms Felicia Seder, Senior Accounts Person. The various statements made no reference to the identity of the employer not being the Respondent.

[4] I therefore find that the Applicant was employed by Delstrat Pty Ltd as trustee for the Delstrat Administration Trust, being the Respondent in this matter and that the matter is one that the Fair Work Commission (the FWC) has jurisdiction to deal with.

The Evidence

[5] The evidence of the Applicant consisted of a statement made and tendered by her and statements in reply to each of the witness statements of the Respondent. The evidence of the Respondent consisted of statements made and tendered by the following Mr David Basso, Manager; Ms Tracy Joughlin, WA Chief Financial Officer; Ms Felicia Seder, Senior Accounts Person; and Ms Laurel Lewis, Accounts Manager. Those that provided witness statements did not make themselves available for cross examination. I am therefore left with the task of deciding this matter only from the statements provided.

The Applicant

[6] The Applicant evidenced that she was employed by the Respondent from 8 March 2013. She states she had a work evaluation in October 2013 which was conducted by Ms Seder. The Applicant says she received a good evaluation and afterwards a pay increase.

[7] The Applicant stated that when she worked at reception on the ground floor she was unable to perform her accounts work. The accounts section is located on the first floor. The Applicant decided it would be better to transfer the phone from reception to the office space on the first floor. She approached Ms Lynda McFeggan and Ms Lewis who both refused her request. The Applicant then approached and gained permission by Mr Basso which resulted in a phone being installed in her work area on the first floor. A bell was installed at the reception and the Applicant would go downstairs to receive anyone who appeared at the reception.

[8] The Applicant asserts that “she became aware” that Ms McFeggan and Ms Lewis were not pleased with her decision to speak directly with Mr Basso. She states that “they thought I had gone behind their backs”. The Applicant states that Ms McFeggan began directing her to not go downstairs to reception unless she requested permission first. She also was directed not to give work to another employee, Ms Amy Thorpe (Amy). The Applicant says that she would respond “it’s not urgent and Amy could do it when she was not doing other duties”.

[9] The Applicant states that before she pursued the phone being upstairs the Respondent had not raised issues with her allocating work to others which she had done before Amy was employed by allocating work to Ms Tamara Edwards.

[10] The Applicant asserts that Ms McFeggan did not respond to her and she considered that Ms McFeggan was angry with her because of the telephone incident and that she felt intimidated by her. The Applicant asserts that when the Applicant allocated work to Amy Ms McFeggan would “run upstairs and tell Ms Seder” or would “run to her office and call her [Ms Seder]”. The Applicant asserts that Ms Seder “found it [the conduct of Ms McFeggan] funny and was a little annoyed”. The Applicant also asserts that Ms Seder had told her that she (Ms Seder) was annoyed with Ms McFeggan’s behaviour towards her (the Applicant) which “was bordering on workplace bullying”.

[11] The Applicant also asserts that Ms Seder had informed her that she was “happy with my [the Applicant’s] work ethic and with my approach to work”. The Applicant also asserts that several weeks after the phone had been installed Mr Basso asked her how everything was going to which the Applicant says she replied: “that things were better in as much as - when we saw each other we greeted each other and that if I had a question in regards to a matter that Lynda [Ms McFeggan] handled I would go and ask her”. The Applicant asserts that Mr Basso then stated that she “needed to be “tough skinned” around her and not to let Lynda [McFaggen] get to me.”

[12] The Applicant states that:

“Ms. McFegan had no authority to direct me in my duties. I always approached Ms. McFegan in a respectful manner, as she is a long term employee of the company and much older than myself which I respected in my interactions with Ms. McFegan”.

[13] The Applicant was absent from work through illness between 21 and 25 January 2014. She was dismissed on 28 January 2014 at about 5 pm. The Applicant states that Ms Joughin said that the Applicant’s manner towards people “came across as me [the Applicant] not wanting to be at work” and that the Respondent “needed someone who wanted to be there full time”. The Applicant says that she explained her phone manner though examples endeavouring to illustrate that her manner was courteous and appropriate.

Ms Joughin

[14] Ms Joughin provided a statement which included the following assertions and observations:

● The Applicant was unhappy with handling reception duties.

● Ms Lewis and Ms McFeggan advised her that the Applicant was not performing her duties and when asked to do so was dismissive and that she ignored instructions which caused disruption to the administrative operations.

● She [Ms Joughin] confirmed with Mr Basso; Ms Lewis and Ms McFeggan that the reception duties were part of the Applicant’s role.

● In November 2013 the Applicant wrongly redirected the telephone to an afterhours sales representative instead of transferring it back to the reception desk. [It did not appear that Ms Joughin was critical of the error but rather the non-responsiveness of the Applicant when the mistake had been pointed out to her.]

● On 19 November 2013 she [Ms Joughin] raised her concerns about the reception role and the Applicant confirmed that she did not have a positive attitude regarding the role. Ms Joughin stated that she also informed the Applicant that it was not acceptable to speak to other staff members in the way that she did when she did not agree with their instructions [it appeared as though the Respondent considered the Applicant was under the authority of more senior people but that she did not follow their instructions or was critical of them]. The Applicant was also informed that all instructions would come from either Ms Joughin or Ms Seder.

● Ms Joughin stated that the Applicant was given a verbal warning at that meeting.

● In December 2013 the Applicant appeared upset and told Ms Joughin that she wished to go home. Ms Joughin stated that there was no mention of bullying at that time [it seems strange that Ms Joughin would raise the lack of a mention of bullying, almost as if she suspected there may have been].

● Ms Joughin also stated that she observed (on an unspecified date) the Applicant with a clean desk and not performing work. Ms Joughin infers that the reply given by the Applicant to her that “her computer was not working properly” was false although she does not expressly state that.

● Ms Joughin states that she monitored the Applicant’s performance in December 2013 and January 2014 and did not notice any improvement in her performance. As a consequence the Applicant was dismissed on 28 January 2014.

Ms Seder

[15] Ms Seder says she conducted the Applicant’s work performance evaluation in October 2013. She states that she raised with the Applicant her attitude to other accounts staff.

[16] There was no other evidence by Ms Seder that addressed any of the Applicant’s contentions.

Mr Basso

[17] Mr Basso provided a statement. Mr Basso confirmed the Applicant’s account of his authorisation of the Applicant’s request for the provision of a phone “upstairs”. He also confirmed the Applicant’s account of the discussion he had with the Applicant after the phone system was installed.

Consideration and findings

[18] From the statements provided the following appears to me to be the situations and series of events.

[19] The Applicant asserts that Ms McFeggan intimidated her. The inference is that she was bullied. Ms McFeggan did not provide a statement however the Applicant’s own account of the relationship from the incidents she described cast some doubt on whether she was treated improperly. Firstly the Applicant says that when Ms McFeggan told her not to give any work to Amy the Applicant states that she responded “it’s not urgent and that Amy could do it when she wasn’t doing other duties.” That does not appear to me to be a person that felt intimidated. Secondly it seems that the direction of Ms McFeggan was not followed as the Applicant’s statements are cast in the plural rather than as a single event. The Applicant asserts that Ms McFeggan had no authority over her and perhaps that is why the Applicant did not feel obliged to follow her instructions, if that is what they were. Thirdly the tenor of the Applicant’s statement regarding Ms McFeggan’s conduct is cast in what appears to be critical if not sarcastic terms. For example the Applicant refers to Ms McFeggan would “run upstairs and tell Ms Felicia Seder and/or she would run to her office and call her to see” as if Ms McFeggan was some sort of schoolyard snitch.

[20] The Applicant asserts that in late 2013 Ms McFeggan “had reduced me to “tears””. However she also states that Ms Seder inquired of her whether Ms McFeggan had been the cause of her upset and the Applicant denied that she (Ms McFeggan) had been. The Applicant now explains that she was embarrassed by the situation and that is why she gave that answer. However that part of the Applicant’s statement establishes nothing other than she was upset and she lied about the cause of the upset. Even if Ms McFeggan had been the cause there is no explanation as to what Ms McFeggan had done or said to upset the Applicant.

[21] The Applicant stated that before Christmas 2013 Ms Joughin spoke to her about her reception duties. The Applicant says Ms Joughin asked if she was “OK doing the phones; as it was explained; that I [the Applicant] was apparently coming across like I [the Applicant] didn’t want to do it”.Amongst other things the Applicant says she told Ms Joughin that she “loved it”. She says that the conversation ended without any instructions or advice to her.

[22] Ms Joughin in her statement said:

“On the 19th November 2013 I asked Ms Moody to come into my office to discuss her employment. I explained my observations to Ms Moody and she explained she was under the impression that the reception duties were only required on an occasional basis therefore she confirmed her attitude was not positive. I explained that the reception duties were always part of her role and would continue to be so, and her current performance was not satisfactory. I asked Ms Moody if this would be a problem and she said no, she accepted this was part of her role. I gave Ms Moody a verbal warning that if her performance did not improve then her employment was at risk. I also explained that it was not acceptable to speak to other staff dismissively when she did not agree with instructions. Ms Moody did not offer any explanation for her conduct, therefore I suggested that to ensure there were no conflicts between her WA Building accounts work and the reception duties, all instructions would come from either myself or her supervisor Ms Seder who could quickly identify the priorities. I also made the offer that Ms Moody could approach me when she didn’t have much work to do and she could assist with tasks relevant to her accounting studies.”

[23] It is unclear whether the meeting on 19 November 2013 is the same meeting the Applicant was referring to but it does appear to cover at least some of the same ground. In any event whether it was the same or different meetings the conduct and behaviour of the Applicant appear to have been under some scrutiny and a cause of concern for the Respondent. It would not seem likely that having raised the issues Ms Joughin says she canvassed with the Applicant on 19 November 2013 that there would be another meeting that canvassed issues in the manner the Applicant says they were canvassed a few weeks later.

[24] It seems to me that the Applicant was at least unclear of both what was canvassed at the meeting on 19 November 2013 and how it was left. Ms Joughin’s account of it is quite specific and precise as to what occurred. I accept her account of what occurred at that meeting whether another meeting occurred or not. It also seems quite unlikely that the matters aired at the meeting of 19 November 2013 were not left without some guidance or direction being given to the Applicant. Ms Joughin viewed the meeting as an explanation of concerns about the Applicant’s conduct and performance and a warning being given about it. I accept that account.

[25] I also accept Ms Joughin’s account of the incident where she approached the Applicant and questioned her about not performing work and the Applicant giving a dishonest explanation.

[26] I find from the cases presented and statements provided that there was a valid reason for the dismissal of the Applicant from her employment. That reason was that the Applicant’s conduct and performance did not meet the standards and requirements of the Respondent. The conduct and performance issues were those matters raised with the Applicant by Ms Joughin on 19 November 2013.

[27] The Applicant was notified of the reasons in the meeting of 19 November 2013 and on 28 January 2014 when she was dismissed. The Applicant was given the opportunity to respond at both of those meetings.

[28] There is no evidence that the Applicant requested a support person be present at either of those meetings.

[29] The Applicant was warned about her performance on 19 November 2013.

[30] I have no evidence to suggest that the degree to which the size of the Respondent’s enterprise would impact on the procedures followed in effecting the dismissal. Neither is there any evidence about the presence nor absence of dedicated human resource management specialists or expertise in the enterprise that would be likely to impact on the procedures followed in effecting the dismissal.

[31] Taking the above matters into account I find that the dismissal of the Applicant was not harsh, unjust or unreasonable. I therefore find that the Applicant was not unfairly dismissed. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

G Ferguson of the Transport Workers’ Union of Australia for the Applicant.

T Joughin from the Respondent.

Hearing details:

2014.

Perth:

October 2.

Final written submissions:

Applicant, 9 October 2014.

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