Michelle RawsonvMudgee Golf Club Ltd

[2021] FWC 1171

[2021] FWC 1171

FAIR WORK COMMISSION

DECISION NO. 2

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

Michelle Rawson
v
Mudgee Golf Club Ltd
(U2020/2622)

COMMISSIONER CAMBRIDGE SYDNEY, 10 MARCH 2021

Unfair dismissal - summary dismissal - serious misconduct - valid reason for dismissal - procedural deficiencies - advice of dismissal sent by email - dismissal harsh - nominal compensation provided.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 6 March 2020. The application was made by Michelle Rawson (the applicant) and the respondent employer is the Mudgee Golf Club Ltd ABN 28 001 001 305 (the employer or the club).

[2] The application indicated that the date that the applicant’s dismissal took effect was 26 February 2020. Consequently, prima facie, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act. However, the application included a copy of an employment separation certificate dated 26 February 2020, which stated that the date that the applicant’s employment ceased was 11 February 2020.

[3] On 6 April 2020, the Registered Clubs Association of NSW (ClubsNSW) acting on behalf of the employer, filed an employer’s response to the application (Form F3). The Form F3 relevantly indicated that the date that the applicant’s dismissal took effect was 11 February 2020. Consequently, the employer raised a jurisdictional objection on the basis that it asserted that the application had been made out of time.

[4] On 7 April 2020, the application was the subject of unsuccessful conciliation. At the conciliation and in subsequent proceedings, the applicant has been represented by Mr Stephen York. Mr York is not a lawyer or paid agent, and he has represented the applicant in an unpaid capacity. Following the unsuccessful conciliation, the employer requested that its jurisdictional objection be determined before any consideration of the merits of the application was undertaken.

[5] In a Decision issued on 11 September 2020, [2020] FWC 4813, (the Jurisdictional Decision) the Commission dismissed the jurisdictional objection that had been raised by the employer, as the application was made within the 21 day time limit established by subsection 394 (2) (a) of the Act.

Background

[6] The applicant had worked for the employer in two separate periods. The second period of her employment commenced on 14 March 2019, and it concluded with the dismissal of the applicant on 19 February 2020. The applicant was initially employed as a Cook, and in August 2019, she was promoted to the role of Head Chef. The employer operates a golf club with bar and restaurant facilities in the New South Wales country town of Mudgee.

[7] On Thursday, 16 January 2020, the employer’s Bar Supervisor, Mr Rhys George, spoke with the employer’s then Vice President, Ms Carrol Broadley, and he raised allegations of misconduct against the applicant. In particular, Mr George alleged that when he had entered the kitchen and engaged the applicant in a discussion about food orders, the applicant became angry and she made a threat that she would stab him (the stab threat). Ms Broadley had previously observed that the relationship between Mr George and the applicant was at times, strained, and that more generally there were tensions between kitchen and bar staff. Ms Broadley discussed the allegations that had been raised by Mr George with the employer’s President, Mr Gowdie, and they decided to arrange a meeting with the applicant and Mr George.

[8] On Friday, 17 January 2020, Ms Broadley convened a meeting at which the applicant, Mr George, Mr Gowdie, and another of the employer’s Directors, Mr Williamson, were also in attendance. The applicant was not provided with any notification of the meeting or the subject matter involving the stab threat allegation that had been raised by Mr George, prior to being directed into the meeting. Mr Williamson took minutes of the meeting which he described as a disciplinary meeting.

[9] The evidence about the discussion that occurred during the meeting on 17 January 2020, involved significant contest, and the minutes taken by Mr Williamson were challenged as they did not record particular details which were subsequently verified by all of the participants. In broad terms, the most significant aspect of contested evidence regarding the 17 January meeting involved the issue as to whether, after initially denying that she had threatened to stab Mr George, the applicant admitted to making such a threat, but that she downplayed the comments by stating that she had frequently used remarks of this nature.

[10] Notwithstanding the divergent evidence regarding the detail of the discussion that occurred during the meeting on 17 January 2020, it was clear that the catalyst for the meeting was the stab threat allegation raised by Mr George against the applicant, and the stab threat was the subject of much discussion during the meeting. Further, it was clear that the employer anticipated that the outcome of the meeting was that the applicant would ensure that her future conduct would be conducive to a more harmonious, respectful workplace, and that the past tensions between kitchen and bar staff would need to cease. There was no formalised disciplinary action taken or documented by the employer arising from the 17 January 2020 meeting.

[11] On Sunday, 19 January 2020, Mr George sent a text message to Ms Broadley which informed her that there had been an incident at the club that involved the applicant and a bar/bistro attendant, Ms Annelise Payne. Ms Broadley then went to the club premises and spoke to Ms Payne. Ms Payne told Ms Broadley that the applicant had treated her in a very disrespectful manner and had humiliated her when firstly, she had sought clarification about the apparent unavailability of a lamb rump dish, and secondly, refused to accept an order in which Ms Payne had provided a free child’s meal that the applicant insisted required payment (the free child’s meal incident). In respect to the free child’s meal incident, in order to avoid further argument, Ms Payne paid for the disputed child’s meal herself.

[12] Ms Broadley requested that Ms Payne immediately make a written record of the detail of the events that involved the applicant that evening. Ms Payne then made a handwritten record of the events that had occurred that evening which included mention that she believed that the applicant was treating her badly in retaliation for Ms Payne having informed Mr George that the applicant was making disparaging comments about Mr George’s character including calling him a snake.

[13] Ms Broadley read the handwritten record provided to her by Ms Payne, and she showed the document to Mr Gowdie. Ms Broadley and Mr Gowdie discussed the events of 19 January which revealed the ongoing level of tension between bar staff and the applicant, and they decided to call a meeting of the employer’s Board of Directors for the following day, Monday, 20 January 2020.

[14] On Monday, 20 January 2020 the employer’s Board held an extraordinary meeting during which there was discussion about the potential for disciplinary action to be taken against the applicant. The employer’s Board resolved to endorse the actions of Mr Gowdie which, upon advice from ClubsNSW, was to provide the applicant with a notice to show cause and to place the applicant on paid suspension from duties.

[15] Although the applicant was not rostered for duty on Monday, 20 January 2020, she was at the club premises attending to other work related matters. Mr Gowdie and Ms Broadley approached the applicant and arranged to immediately meet with her, whereupon she was advised that she had been suspended from duty and would be provided with a show cause notice.

[16] On the afternoon of 20 January 2020, Mr Gowdie sent an email to the applicant which confirmed the earlier verbal advice of her suspension from duty and set out three allegations of misconduct. The allegations of misconduct related to inter alia, the stab threat incident of 16 January and the free child’s meal incident of 19 January. The suspension from employment letter also advised that the applicant was required to attend a meeting at 10 am on Friday, 24 January, at which time she would be provided with an opportunity to respond to the allegations of misconduct.

[17] On 22 January 2020, the applicant sent an email to Mr Gowdie which responded to the suspension from employment letter. In this response document, the applicant denied the three allegations of misconduct and inter alia, she denied the stab threat incident of 16 January, and she also denied that her conduct on 19 January represented disrespectful behaviour. The free child’s meal incident of 19 January was not specifically referred to by the applicant in her response document. The applicant submitted that she had been unfairly suspended, and that the investigation of the allegations had not been carried out in an unbiased manner. The applicant also attached a medical certificate confirming that she was unfit to work until 28 January 2020.

[18] The applicant remained on paid suspension/sick leave when on 5 February 2020, Mr Gowdie sent a letter to the applicant via email which requested her attendance at the club premises for a formal disciplinary meeting scheduled for 4 pm on Friday, 7 February 2020. The letter of 5 February 2020 set out six numbered issues which were considered to represent allegations of misconduct that the applicant would be provided with an opportunity to respond to at the meeting on 7 February 2020. Relevantly, the six allegations of misconduct included the stab threat incident of 16 January, the free kid’s meal incident of 19 January, and additional allegations including that the applicant had attempted to delete the club’s Facebook account on 21 January 2020 (the Facebook incident). (The Facebook incident was subsequently identified to have occurred on 20 January 2020.)

[19] The applicant and her support person subsequently attended the disciplinary meeting on 7 February 2020, at which time the applicant denied each of the six allegations of misconduct.

[20] On Monday, 10 February 2020, the employer’s Board held an extraordinary meeting during which it was resolved to provide the applicant with a show cause letter to which the applicant was required to respond within 24 hours, and in the absence of an acceptable response the applicant’s employment was to be terminated.

[21] Following the employer’s Board meeting on 10 February 2020, Mr Gowdie sent a show cause notice letter to the applicant via email. The show cause notice letter identified three allegations of misconduct including, the stab threat incident of 16 January, and the Facebook incident of 21 January. The third allegation in the show cause notice involved an alleged breach of confidentiality on the part of the applicant. The show cause notice letter required the applicant to respond in writing by 5 pm the next day and to show cause why her employment should not be terminated. The applicant did not receive this email communication and consequently she did not provide any response within the specified timeframe.

[22] At 5:33 pm on 11 February 2020, Mr Gowdie sent a termination of employment letter to the applicant via email. The termination of employment letter advised that the applicant had been summarily dismissed with immediate effect and without notice. The termination of employment letter relevantly stated that the applicant had been dismissed for serious and wilful misconduct involving “threatening to stab a fellow employee and attempting to shut down the Facebook site of the Golf Club.” The applicant did not receive this email communication.

[23] As was identified in the Jurisdictional Decision, there was no discernible reason why the emails sent by Mr Gowdie on 10 and 11 February did not appear in the inbox of the applicant’s home email address. On 19 February 2020, the applicant telephoned the person responsible for processing the employer’s payroll to enquire why her pay was more than she had anticipated, and at this time she was advised that she had been dismissed.

[24] Following the termination of her employment the applicant has obtained alternative casual employment on and from 3 March 2020. The alternative casual employment has provided remuneration of between $400-$200 per week less than the remuneration received by the applicant when she was employed with the club.

The Case for the Applicant

[25] Mr York appeared on behalf of the applicant at the Hearing, and he provided written submission documents respectively dated 23 October and 17 December 2020. In summary, the written submission material asserted that the dismissal of the applicant was harsh, unjust and unreasonable as there was no valid reason for dismissal, and that there were numerous procedural deficiencies associated with the termination of the applicant’s employment.

[26] The submissions made on behalf of the applicant noted that the applicant was described to be a model citizen who had no criminal record and had been an active community member supporting families with disabilities. Further, the applicant’s submissions stated that she had over five years of employment with the club, and during that period had not received one written complaint, disciplinary notice or warning about her conduct in the workplace.

[27] The submissions made on behalf of the applicant made repeated complaints that the employer’s response Form F3 had not been filed within the timeframe stipulated by Rule 19 of the Fair Work Commission Rules 2013. Further, the applicant submitted that the (late) Form F3 failed to provide any attached documents to substantiate the allegations made by the employer or to provide proof of any wrongdoing by the applicant.

[28] The written submissions made on behalf of the applicant referred to the various criteria contained in paragraphs (a) to (h) of s. 387 of the Act. The applicant submitted that she had been unfairly dismissed without the employer establishing valid reason for her summary dismissal.

[29] The applicant’s written submissions referred to the meeting held on 17 January 2020, and numerous criticisms were made of the employer’s approach to conducting that meeting. The applicant submitted that the Commission should reject the evidence that had been provided by Ms Broadley, Mr Gowdie, Mr Williamson and Mr George whereby it was asserted that during the 17 January meeting, after the applicant had initially denied making the stab threat, she subsequently admitted to that conduct. The applicant submitted that the minutes of this meeting did not mention that the applicant initially denied making the stab threat and the minutes could not be relied upon as a true and accurate record of the meeting of 17 January 2020.

[30] The applicant further submitted that the deficiencies with the minutes of the meeting of 17 January 2020, introduced significant doubt about the merits of the case advanced by the employer. The submissions made by the applicant referred to the standard of proof that was required to make a finding that the applicant had made the stab threat as had been alleged. The applicant submitted that there was insufficient evidence to support a finding that could be established upon the requisite standard of proof. It was submitted that the stab threat incident did not occur, and there was no evidence introduced from any of the other employees who were working at the time to support the allegation made by Mr George.

[31] The submissions made by the applicant then referred to the Facebook incident. The applicant submitted that the evidence provided by Ms Wilkins about the applicant’s alleged attempt to delete the club’s Facebook page should not be accepted. The applicant submitted that Ms Wilkins did not have the essential academic skills, training, or knowledge to provide evidence that would properly support the accusation that the applicant had attempted to delete the club’s Facebook page. Further, the applicant submitted that she had been dismissed without any opportunity to respond to the allegation about the Facebook incident because she had not received the show cause notice that was emailed to her on 10 February 2020.

[32] The applicant also made submissions in respect of the free child’s meal incident of 19 January. The applicant submitted that the evidence provided by Ms Payne lacked credibility and believability. The applicant asserted that she was not in the kitchen but in the office on the evening of 19 January, and it was the case that the applicant was not the person that discussed the free child’s meal with Ms Payne.

[33] The applicant’s submissions also focused upon the summary nature of the dismissal and the relevant serious and wilful misconduct that would need to be established to provide sound basis for summary dismissal. The applicant submitted that the proposition that the applicant’s conduct towards Mr George in the stab threat incident and towards Ms Payne in the free child’s meal incident, could not be considered to be conduct that caused serious and imminent risk to the health or safety of a person within the meaning of Regulation 1.07 of the Fair Work Regulations 2009.

[34] The applicant’s submissions traversed various aspects of alleged procedural deficiency in the manner in which the employer dealt with the allegations of misconduct that were made against the applicant. In this regard, it was submitted that the applicant was not given an opportunity to defend herself or respond to the allegations before she was dismissed. Various aspects of alleged procedural unfairness were identified including that the applicant had not been properly informed of the meeting of 17 January, nor did the employer take into consideration the applicant’s response letter of 22 January, and the employer proceeded to make a decision to terminate the employment of the applicant without providing the applicant natural justice.

[35] The applicant made submissions which stressed that the summary dismissal of the applicant by electronic communication represented a significant procedural deficiency and that combined with the merits of the case, established that the dismissal of the applicant was unfair, unjust and harsh. The applicant further submitted that she should be provided with the maximum allowable compensation as remedy for her unfair dismissal.

The Case for the Employer

[36] Mr Ushakoff from ClubsNSW, represented the employer at the Hearing and he provided written submission documents respectively dated 25 November and 11 December 2020. The written submissions provided on behalf of the employer summarised the factual circumstances as contended for by the employer, and were further constructed by reference to the various criteria contained in s. 387 of the Act.

[37] The employer submitted that the applicant was dismissed for valid reason involving her serious misconduct. The employer submitted that the serious misconduct of the applicant arose from four incidents. The four incidents of misconduct that the employer asserted to represent valid reason for dismissal were: 1. The stab threat incident of 16 January; 2. The applicant calling Mr George a snake (which was not denied); 3. The free child’s meal incident of 19 January; and 4. The Facebook incident.

[38] In relation to the stab threat incident of 16 January, the employer submitted that the evidence of Ms Broadley, Mr Gowdie, Mr Williamson and Mr George confirmed that the applicant had admitted to making the stab threat during the meeting held on 17 January 2020. The employer submitted that the applicant’s subsequent denial of making the stab threat, and her further denial of any admission of that conduct at the meeting on 17 January, should be rejected, and the evidence of the others that were in attendance at the meeting should be preferred over the evidence of the applicant.

[39] In relation to the free child’s meal incident of 19 January, the employer submitted that the evidence of Mr George, Ms Payne, Ms Broadley, and Ms Wilkins should be preferred over the evidence provided by the applicant and Ms York. The employer submitted that the evidence established that the applicant’s conduct in respect to the free child’s meal incident on 19 January represented continued bullying and victimisation behaviour. The employer submitted that particularly in the context of the earlier, recent stab threat incident, the applicant’s behaviour in respect to the free child’s meal incident represented further serious misconduct.

[40] In relation to the Facebook incident, the employer submitted that the evidence that was provided by Ms Wilkins confirmed that the applicant had attempted to delete the club’s Facebook page on 20 January 2020. The employer submitted that the applicant’s initial denials in respect to the Facebook page incident and her subsequent explanation asserting that her actions were intended to only remove herself as an administrator for the Facebook page, amounted to a new explanation that was a dishonest fabrication.

[41] The employer made further submissions which strongly challenged the applicant’s credibility as a result of the purported explanation for her conduct in respect of the Facebook incident which she had not offered at any time before the Hearing on 3 December 2020. The employer submitted that the applicant had changed her story and offered an explanation for the deletion of the Facebook page for the first time at the Hearing. The employer stressed that the explanation that the applicant had meant only to remove herself as administrator, and she instead accidentally attempted to delete the Facebook page by mistake, was a recently provided defence that was not believable and which discredited the applicant’s evidence in respect of her overall unfair dismissal application.

[42] The employer further submitted that it had formed the view that the applicant had acted dishonestly in respect to the various allegations of misconduct generally and in particular, her admission regarding the stab threat incident which she subsequently denied. Consequently, the employer submitted that the conduct of the applicant when considered in totality and in the context of the employer forming a view as to her dishonesty, amounted to serious misconduct as contemplated by Regulation 1.07 of the Fair Work Regulations 2009. In this regard, the employer stressed that the applicant’s conduct in attempting to delete the club’s Facebook page, was clearly conduct that causes serious and imminent risk to the reputation, viability or profitability of the employer’s business.

[43] The employer summarised its submissions in respect to valid reason for dismissal by stating that in addition to the conduct of the applicant in respect to each individual incident, her conduct displayed a collective pattern which, when taken as a whole, amounted to serious misconduct. The employer submitted that although each instance of misconduct could be established as valid reason for dismissal, when considered in totality, the pattern of the applicant’s behaviour represented serious misconduct and valid reason for dismissal.

[44] The employer submitted that the applicant had been notified of the reasons that lead to her dismissal when she was provided with the suspension letter of 20 January 2020, and the further letter of 5 February 2020, which then led to the applicant’s involvement in the meeting of 7 February. The employer submitted that the applicant had been provided with notice of the reasons for her dismissal prior to the employer making the decision to terminate.

[45] The employer also submitted that the applicant had been given an opportunity to respond to the reasons for her dismissal and she did respond in writing in her letter of 22 January 2020, and again she responded in person together with her support person at the meeting held on 7 February 2020.

[46] The employer’s submissions acknowledged the deficiencies with communication to the applicant on 10 and 11 February as was identified in the Jurisdictional Decision. The employer submitted that any alleged procedural defect would not have affected the outcome of the termination of the applicant’s employment. The employer contended that even if the alleged procedural defects were rectified before the dismissal decision was made, the outcome involving the dismissal of the applicant would not have changed.

[47] The employer submitted that there was no unreasonable refusal to allow the applicant to have a support person present and in fact the applicant’s support person attended the meeting held on 7 February 2020. Further, the employer asserted that the applicant had been informed at the meeting on 17 January 2020, that further instances of bullying behaviour would lead to the termination of her employment.

[48] The submissions made by the employer stated that it was a small club which at the time of the applicant’s dismissal had approximately 18 employees, and subsequently it has less than 15 employees. Further, the employer submitted that management of the club was the responsibility of a voluntary Board of Directors and the club did not have dedicated human resource management personnel. It was submitted that these factors were likely to impact on the procedures that the employer followed in effecting the dismissal of the applicant.

[49] In summary, the employer submitted that it had valid reason to terminate the applicant’s employment and it had followed appropriate procedural fairness in the context of the club’s size. Further, the employer submitted that any implication of harshness based on the conveying of the dismissal via email was offset or outweighed by the seriousness of the applicant’s misconduct. Consequently, the employer submitted that the dismissal of the applicant was not unfair, and the application for unfair dismissal remedy should be dismissed.

Consideration

[50] The unfair dismissal provisions of the Act relevantly include s. 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. Section 385 is in the following terms:

“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.”

[51] In this case, there was no dispute that the applicant had been dismissed from her employment, the employer was not a small business at the time of the dismissal of the applicant, and there was no suggestion that the dismissal of the applicant involved redundancy. Consequently the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.

[52] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

“(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.”

S. 387 (a) - Valid reason for the dismissal related to capacity or conduct

[53] In this instance, the applicant was summarily dismissed because the employer considered that her conduct in respect to a number of incidents commencing with the stab threat incident of 16 January 2020, represented serious misconduct. The termination of employment letter dated 11 February, 2020, which was sent by email to the applicant, and which she did not receive, stated that the applicant had engaged in “serious misconduct by threatening to stab a fellow employee and attempting to shutdown the Facebook site of the Golf Club.”

[54] Although the reasons that were stated in the termination of employment letter mentioned two issues, namely, the stab threat incident and the Facebook incident, the evidence that was adduced at the Hearing established that there were three primary incidents which the employer considered to represent serious misconduct on the part of the applicant and for which she was summarily dismissed from employment. These three primary incidents were: 1. The stab threat incident of 16 January; 2. The free child’s meal incident of 19 January; and 3. The Facebook incident which occurred on 20 January.

[55] The stab threat incident of 16 January included two components. The first component was the actual threat incident on 16 January, and the second component involved the alleged admission by the applicant of the conduct during the meeting held on 17 January. The second component regarding the applicant’s alleged admission and then her subsequent denial introduced a challenge to the applicant’s honesty generally. There was directly conflicting evidence about both the stab threat incident and the free child’s meal incident. In order to resolve the conflicts in the evidence surrounding both the stab threat incident and the free child’s meal incident it has been necessary to determine whether the applicant’s version of these events or the version that was deposed by the various witnesses for the employer should be believed.

[56] A consideration of the conflicting evidence surrounding the three primary incidents requires a conclusion as to whether the applicant provided truthful and credible evidence or whether the witnesses for the employer should be believed. Unfortunately, the nature of the evidentiary contests in this case could not be resolved by providing accommodation for understandable deficiencies in recollection and perceptions such that, on balance and weight, one version of events might be preferred over the other. In this instance, the resolution of the conflicting evidence has required findings to be made in respect to the question of credit of the witnesses and the truthfulness of the evidence that was provided. In order to make the necessary findings as to credit, it has been helpful and appropriate to firstly examine the evidence of the third incident, the Facebook incident that occurred on 20 January 2020.

The Facebook Incident

[57] The evidence provided in annexure C to Exhibit 7 established that on 20 January 2020, the applicant had scheduled the club’s Facebook page for deletion. This action on the part of the applicant was identified as allegation number 5 in the meeting request letter of 5 February 2020. The applicant then attended the meeting with the employer on 7 February 2020, and the following extract from the minutes of that meeting recorded the applicant’s response on this particular issue:

“Issue 5 – attempted to delete the clubs FB page – “I deny it” . Neal stated “is that despite the written evidence we have that you did. The support person told her to say “No comment” and that is what her reply was.” 1

[58] The applicant’s primary evidence in respect to the Facebook incident was contained in paragraphs 33 and 34 of her witness statement which are reproduced as follows:

“33. 07 February 2020, I attended a meeting requested by the Club with a support person. At this meeting the Club alleged that I attempted to disable the Facebook page of the club and breached confidentiality.

Both of these new allegations were not detailed enough to enable me to respond intelligently.

34. The Club refused to provide any evidence or proof to support the allegations. The meeting ended without any agreement to the conduct alleged. I denied all the allegations alleged by the Club. My answers at this meeting were consistent with my previous responses provided to the Club.” 2

[59] It is relevant to examine the mention of the Facebook incident that was included in the applicant’s submissions filed on 23 October 2020, wherein it was stated:

“39. The alleged allegation is the Applicant tried to disable the Club’s Facebook account. The applicant denies this allegation.

40. The Applicant has no technological skills, training or knowledge to disable any Facebook account.

41. No evidence is available showing how the Applicant disabled the Facebook account or what expert evidence supports this disablement.

42. The Applicant cannot comment on something she didn’t do or does not understand. The Applicant knows nothing about the Facebook incident and was denied an opportunity to respond to this alleged incident before being dismissed. It is suggested the Respondent meant deactivate Facebook, not disable.” [Emphasis added]

[60] Therefore, before the Hearing on 3 December 2020, the applicant had denied the allegation that she had attempted to disable the club’s Facebook page, and it was submitted that she could not comment on something that she had not done or didn’t understand, and that she knew nothing about the Facebook incident. Consequently, it was very surprising that as Mr York introduced further evidence-in-chief from the applicant, she provided the following explanation for the Facebook incident:

“On 20 January 2020 did you schedule (indistinct) Facebook (indistinct)?--- No, I was an administrator of the Facebook club page so I posted things regarding the restaurant and just general things that were coming up in the club. So after this meeting that we’d had I figured that - you know, I didn’t want to do that role anymore, so I removed myself from the page. That’s what I was trying to do.” 3

[61] The explanation that the applicant gave during the Hearing for her conduct in respect of the Facebook incident could have easily been given at the 7 February meeting. The explanation for the conduct of the applicant in respect of the Facebook incident could have been included in her witness statement, or in her other submission material. It was clear that the applicant did not know nothing about the Facebook incident as was asserted, and she was given an opportunity to provide the explanation about the Facebook incident to the employer at the 7 February meeting.

[62] Further, the applicant had ample opportunity to provide the Commission and the employer with the explanation which subsequently emerged at the Hearing, and the failure to provide this important evidence at an earlier time, and contrary to the applicant’s previous pleadings of ignorance, has impugned her evidence such that, when combined with evidence of the processes that must be followed to schedule the deletion of a Facebook page as opposed to the removal of someone who has a role on a Facebook page, the explanation for the applicant’s Facebook incident conduct must be rejected. The explanation was little more than a belated invention. Regrettably for the applicant, the rejection of her evidence providing explanation for her conduct in respect to the Facebook page incident has translated into an adverse credit finding generally.

[63] It should also be noted that the Facebook incident would have, even on the applicant’s version of her conduct, amounted to behaviour that was inconsistent with the continuation of the applicant’s employment. The applicant’s role involved her regular utilisation of the club’s Facebook page as an administrator. In an act of retaliation following her suspension from duty the applicant said that she “wanted to remove my name as an administrator because I didn’t want anything to do with it.” 4

[64] The applicant’s suspension from duty would logically halt her activities in respect to the functions she performed as an administrator for the club’s Facebook page. Presumably during the period of her suspension she would simply not perform any functions as an administrator. It would not be necessary for her to remove herself as administrator in order to suspend her activities as an administrator. However if, as she asserted, she was removing her name as an administrator because she no longer wanted to have anything to do with it, these actions were not conducive to any anticipated continuation of employment. In any event, the applicant’s retaliatory actions were more dramatic than removing herself as an administrator and were intended to inflict more significant harm on the employer.

The Stab Threat Incident

[65] In view of the adverse credit findings that must regrettably be made against the applicant, the Commission is unable to accept her evidence that she did not use words which involved a threat to stab Mr George during their terse exchange on 16 January 2020. Further, on weight of evidence alone, a finding must be made that during the meeting on 17 January, the applicant admitted to using words which involved a stab threat to Mr George. In fairness however, the threat was little more than hollow, heated words, and there was little, if any, realistic prospect for any physical harm to Mr George.

[66] The evidence concerning the meeting of 17 January that was provided by Ms Broadley, Mr Williamson, Mr Gowdie and Mr George regarding the applicant admitting to using words which involved a threat to stab Mr George was both believable and consistent. All of these witnesses provided their independent recollections of the applicant admitting to using the stab threat words and moderating the use of such words by indicating that she had used such words in the past or even directed them at her children. This evidence was believable, plausible, it was not artificially consistent between the various witnesses, and it was supported by the recorded minutes of the meeting notwithstanding that those minutes were deficient in that they did not include mention of the applicant’s initial denials.

[67] In contrast, when the applicant was cross-examined about the stark contrast between her evidence and that provided by the other witnesses who were present during the meeting of 17 January, the applicant confirmed her belief that the employer’s witnesses were making up their evidence. Further, in an attempt to support her proposition that she did not admit to the stab threat incident during the meeting of 17 January, the applicant provided evidence during the Hearing which asserted that there was no heated exchange of words or other disagreement between her and Mr George on the evening of 16 January. However, the applicant’s attempt to portray the events in the club’s kitchen on the evening of 16 January as “just normal” 5 was inconsistent with her own evidence that Mr George “stormed out of the kitchen in a fit of anger.”6 Further, the proposition that there was no exchange of heated words between the applicant and Mr George in the club’s kitchen on the evening of 16 January, was not a defence that the applicant had raised on previous occasions, and it represented a proposition that would logically defy the entire foundation for the meeting that was held on 17 January.

The Free Child’s Meal Incident

[68] The free child’s meal incident was the subject of evidence in the form of a contemporaneous handwritten record that was made by Ms Payne shortly after the incident had occurred on 19 January 2020. That part of the free child’s meal incident which involved Ms Payne making enquiry with the applicant about the availability of a lamb rump meal was the subject of broadly consistent evidence save and except for the manor and tenor of the applicant’s approach to Ms Payne. More significantly, the applicant and Ms York provided evidence which asserted that the discussion that Ms Payne said she had with the applicant about the necessity for the payment for one of three child’s meals on an order, was an exchange between Ms York and Ms Payne which did not directly involve the applicant.

[69] Upon examination of all of the evidence that was provided by the applicant, Ms York and Ms Payne, and having had the benefit of observing these individuals provide evidence during the Hearing, the evidence of Ms Payne has been preferred wherever that differed from the evidence provided by Ms York and the applicant. Notwithstanding the credit findings that have been made earlier in this Decision, there was a significant inconsistency between the evidence of the applicant and that of Ms York regarding the free child’s meal incident.

[70] During the Hearing the applicant provided evidence 7 in respect to the free child’s meal incident which firmly confirmed that although she did not allegedly speak directly with Ms Payne, she instructed that the particular order was to be delivered without one of the child’s meals. This outcome, whereby the particular order was initially delivered with two adult meals, two child’s meals, and without the third child’s meal, was confirmed by the evidence of Ms Payne.8 Ms York provided contradictory evidence9 whereby she recalled that all three child’s meals went out together.

[71] Consequently, the evidence when carefully considered in totality, has established that the free child’s meal incident involved the applicant refusing to permit the third child’s meal to be prepared and this resulted in the circumstance whereby Ms Payne had to initially deliver the order to the family with only two of the three child’s meals. This understandably caused embarrassment and distress for Ms Payne, and she paid for the third child meal herself rather than engage in any further acrimonious exchange with the applicant.

[72] The applicant’s conduct in respect to the free child’s meal incident was misconduct that involved the intentional humiliation and embarrassment of Ms Payne. Further, the applicant’s conduct in respect to the free child’s meal was misconduct that involved disregard for the likely damage that it would cause to the reputation of the business operation of the employer.

[73] In summary therefore, a detailed and careful examination of all of the evidence concerning the conduct of the applicant in respect to the stab threat incident of 16 January, the free child’s meal incident of 19 January, and the Facebook incident of 20 January, has established that in respect of each of these incidents separately, and in their combination, the conduct represented serious misconduct and provided valid reason for the dismissal of the applicant.

S. 387 (b) - Notification of reason for dismissal

[74] The employer provided notification of the reasons for the applicant's dismissal by email communication. The Commission as currently constituted has frequently stated that communication of the advice of dismissal by electronic means such as email or text message, should generally be avoided. The circumstances in this case, where the email communication was not received by the applicant, has provided further example of why any notification of dismissal should, wherever possible, occur in person.

S. 387 (c) - Opportunity to respond to any reason related to capacity or conduct

[75] The applicant was not given a proper opportunity to respond to the show cause notice of 10 February 2020, because this notice was sent by email communication which the applicant did not receive. In any event, the proposition that the applicant should respond to the 10 February 2020 show cause notice within 24 hours was inappropriate and unnecessarily onerous.

[76] The absence of a response from the applicant to the show cause notice of 10 February 2020, should have initiated further enquiry by the employer before it moved to dismissal. It appeared that the employer, or Mr Gowdie in particular, decided that in the absence of any response from the applicant, it was appropriate to implement dismissal.

[77] There was no evidence of there being any attempt to contact the applicant to confirm that she had received the 10 February show cause notice. Instead, it appeared that it was assumed that the applicant had received that communication and that she was simply failing to respond. As the evidence underpinning the Jurisdictional Decision has ultimately established, this assumption was wrong.

[78] Although the reason why the emails of 10 and 11 February were not received in the applicant’s home email inbox remains a mystery, there may have been some other valid reason why the applicant had not responded to the 10 February show cause notice. The applicant could have been beset by some misadventure, physically incapacitated, and thus unable to respond within the unreasonably short timeframe of 24 hours. In simple terms, before the employer moved to dismiss it should have attempted to contact the applicant to confirm that she had received the email that contained the show cause notice.

[79] The procedure that the employer adopted whereby it hastily moved to dismiss before ensuring that the applicant had proper opportunity to respond to the show cause notice of 10 February 2020, was a significant procedural defect which denied the applicant natural justice.

S. 387 (d) - Unreasonable refusal to allow a support person to assist

[80] The employer did not unreasonably refuse to allow the applicant to have a support person present to assist during any discussions relating to dismissal. The applicant support person did attend the meeting held on 7 February 2020.

S. 387 (e) - Warning about unsatisfactory performance

[81] This factor is not relevant to the circumstances in this instance as the applicant was not dismissed for unsatisfactory performance but instead, serious misconduct.

S. 387 (f) - Size of enterprise likely to impact on procedures

[82] At the time of the dismissal of the applicant the employer was not a small business. However the employer is not a business operation of any significant size and its affairs are conducted by a voluntary Board of Directors. In the circumstances, allowance has been made for a degree of informality and some imprecision in respect to employment related matters.

S. 387 (g) - Absence of management specialists or expertise likely to impact on procedures

[83] There was evidence that the employer did not have management specialists or other expertise. However, the employer accessed assistance from ClubsNSW. In any event, human resource specialists or other experts should not be required to ensure that fundamental fairness is observed. The employer should have adopted an approach that provided the applicant with natural justice. It is irrelevant that subsequently no mitigating factors have been identified which would have changed the employer’s decision to dismiss. The applicant was, as a matter of fundamental fairness, entitled to an opportunity to be heard in respect to the show cause letter of 10 February 2020, before the decision to dismiss was taken.

S. 387 (h) - Other relevant matters

[84] The employer advanced submissions which acknowledged fault in respect of the email communication of the advice of dismissal. The employer asserted that any identified procedural defects should not result in a finding of unfair dismissal as this would represent condonation of what the employer submitted was significant serious misconduct.

[85] In this instance, the particular nature of the misconduct upon which valid reason for dismissal was established must be balanced against the manifest significant procedural deficiencies. On balance, the misconduct in this instance was not of a nature and severity so as to outweigh the significant procedural deficiencies such that no finding of harshness could be avoided.

Conclusion

[86] The applicant was summarily dismissed for serious misconduct involving three primary incidents which involved, the stab threat incident of 16 January, the free child’s meal incident of 19 January, and the Facebook incident of 20 January. This misconduct was considered by the employer in the context of the view that it had formed about the applicant’s dishonesty. Upon careful analysis, the employer’s findings of serious misconduct have been confirmed.

[87] The misconduct of the applicant which involved her unreasonable and aggressive workplace behaviour combined with conduct that intentionally sought to damage the business operation of the employer, was misconduct that was plainly inconsistent with the continuation of employment and it established valid reason for the dismissal of the applicant. However, the valid reason for dismissal has been assessed and evaluated against significant procedural errors which were evident in the manner that the employer determined and implemented the dismissal of the applicant.

[88] The procedural errors in this case were matters of significance such that the applicant was denied natural justice. There was no justification for not ensuring that the applicant had received the show cause notice before the decision to dismiss was made. In any event, the 24 hour timeframe for the applicant’s written response was plainly unreasonable and oppressive. Further, the communication of advice of dismissal via email was entirely inappropriate and unnecessarily harsh.

[89] Therefore, although the applicant was dismissed for valid reason involving her serious misconduct, the significant procedural defects evident in respect of the determination and implementation of the dismissal of the applicant have rendered the summary dismissal to have been harsh and unreasonable. The applicant’s dismissal has been found to have been unfair and the Commission must logically consider the appropriate remedy that should be provided in this instance.

Remedy

[90] The applicant has sought a remedy of the maximum allowable compensation.

[91] In the circumstances, particularly as the employment of the applicant was irreparably damaged by her serious misconduct, most notably that associated with the Facebook incident, reinstatement would not be an appropriate remedy. Further, in the particular circumstances of this case which involved serious misconduct, the appropriate remedy would logically contemplate potential for reduction of any amount of monetary compensation.

[92] The Commission has determined that compensation would be an appropriate remedy for the applicant’s unfair dismissal, and consideration must thereforebe made of the factors which involve the quantification of any amount of compensation.

[93] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. The question of compensation has been approached having regard for the guidelines that have been established in the Full Bench Decisions of, inter alia; Sprigg v Paul’s Licensed Festival Supermarket 10 (Sprigg); Smith and Ors v Moore Paragon Australia Ltd 11 and more recently, the cases of; McCulloch v Calvary Health Care Adelaide12; Balaclava Pastoral Co Pty Ltd v Nurcombe;13 and Hanson Construction Materials v Pericich14(Pericich).

[94] Firstly, the Commission confirms that an Order for payment of compensation to the applicant will be made against the respondent employer in lieu of reinstatement of the applicant.

[95] Secondly, in determining the amount of compensation that is to be Ordered, the Commission has taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[96] There was no specific evidence provided which established that an Order of compensation would impact on the viability of the employer’s enterprise.

[97] The applicant had been employed for a total period of about five years. The applicant would have been likely to have received remuneration of approximately $1,000.00 per week if she had not been dismissed.

[98] There was clear evidence upon which to conclude that the employment of the applicant would have finalised in accordance with a proper and just contemplation of her misconduct. Consequently, the employment of the applicant would have been likely to have concluded within one week after her unfair dismissal.

[99] For the purposes of calculation of remuneration that the applicant would have received or would have been likely to receive if she had not been dismissed, the Commission has considered that the employment of the applicant would have continued for a further one week. Therefore, the total remuneration that would have been received in the notional period of one week following dismissal amounted to a figure of $1,000.00.

[100] The total amount of remuneration received in alternative employment, as identified, and that which may be reasonably likely to be earned between dismissal and the making of the Order for compensation, has been calculated to be $0. There was evidence that the applicant sought and subsequently gained alternative employment on and from 3 March 2020. The alternative employment provided a reduced level of remuneration.

[101] Thirdly, in this instance there was established misconduct of the applicant, and consequently the Commission has decided to make a reduction of 50% to the amount of compensation to be provided to the applicant on account of misconduct.

[102] Fourthly, the amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.

[103] Fifthly, the amount Ordered does not exceed the compensation cap as prescribed by s. 392 (5) of the Act.

[104] Consequently, for the reasons outlined above, taking into account all of the circumstances of the case, and having cognisance so as not to apply the approach taken in the Decision in Sprigg in a rigid, determinative manner, as was cautioned in the Decision in Pericich, the Commission has decided that the amount of compensation to be provided to the applicant should be a gross figure of $500.00.

[105] Accordingly, separate Orders [PR727491] providing for unfair dismissal remedy in these terms will be issued.

COMMISSIONER

Appearances:

Mr S York appeared for the applicant.

Mr M Ushakoff from the Registered Clubs Association of NSW T/A ClubsNSW appeared for the employer.

Hearing details:

2020.
Mudgee:
December, 3.

Printed by authority of the Commonwealth Government Printer

<PR727490>

 1   Exhibit 4 - Annexure J.

 2   Exhibit 1 -page 4/5.

 3   Transcript @ PN104.

 4   Transcript @ PN115.

 5   Transcript @ PN79.

 6   Exhibit 1 - page 1/5 @ paragraph 3.

 7   Transcript @ PN461.

 8   Transcript @ PN1473.

 9   Transcript @ PN608.

 10 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 11   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

 12   John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.

 13   Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, (Hatcher VP, Gostencnik DP and Cribb C) [2017] FWCFB 429.

 14   Hanson Construction Materials Pty Ltd v Darren Pericich, (Ross P, Masson DP and Lee C), [2018] FWCFB 5960.