Mildred Karodza v The Disability Trust

[2013] FWC 6962

[2013] FWC 6962

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mildred Karodza
v
The Disability Trust
(U2013/6959)

DEPUTY PRESIDENT BOOTH SYDNEY, 13 SEPTEMBER 2013

Application for relief from unfair dismissal - vehicular accident - fitness of vehicle for use - credibility of evidence - allegation of dishonesty - valid reason for termination - dismissal not harsh, unjust or unreasonable.

[1] In this matter Ms Mildred Karodza (the applicant) asks the Tribunal to exercise its discretion under s.394 of the Fair Work Act2009 (the Act) to grant a remedy for unfair dismissal in relation to the termination of her employment from The Disability Trust (the respondent) on 14 February 2013.

[2] The application was lodged on 25 February 2013 and a telephone conciliation was conducted on 19 March 2013. The matter was not resolved at conciliation and was listed for hearing before me on 1-2 and 15 July 2013.

[3] Submissions and witness statements were received from the applicant and the respondent prior to the first day of hearing pursuant to directions issued by the Fair Work Commission (the Commission) and during the course of the hearing an Order Requiring a Person to Attend was issued.

[4] Witness evidence was given for the applicant by Ms Karodza and Ms Layla Griffiths, (a co-worker of Ms Karodza’s). Ms Griffiths was ordered to attend.

[5] Witness evidence was given for the respondent by Ms Margaret Bowen (Chief Executive Officer for the respondent), Mr Adelee Ayad (Manager of Residential Care Solutions, Sydney for the respondent), Ms Katharine Carney (Executive Manager for the respondent) and Ms Mary Bartlett (Team Leader for the respondent at Rosemeadow House, the applicant’s place of work). Witness statements were prepared for the respondent by Mr Ian Kearney, Mr Matthew Flood, Ms Sharon Morison and Ms Sharon Prosperi. None of these witnesses were required for cross-examination.

[6] By permission of the Commission pursuant to s.596 of the Act, Ms Karodza was represented by Mr Hugh Ford, solicitor and The Disability Trust by Mr Paul Moorhouse of counsel and Ms Jenny Inness, solicitor.

Contentions

[7] The applicant contends that her dismissal was harsh, unjust and unreasonable and thus unfair and that she was the victim of a “cover-up” by the respondent because employees were allowed to drive an unsafe vehicle. 1

[8] The respondent contends that they had a valid reason to dismiss the applicant. They contend that far from being harsh, unjust or unreasonable her dismissal was appropriate in the light of the applicant’s conduct. In particular, as a result of occurrences during the course of investigating the conduct of the applicant, they formed the view that they could no longer trust the applicant to be an honest person.

Factual circumstances

[9] The Disability Trust is a disability support service providing a diverse range of services including supported residential housing, respite accommodation, day activities programs, attendant care services to clients in their own homes, transition to work and job search services. They employ over 800 permanent and casual employees providing care for more than 3000 clients.

[10] The applicant commenced working for the respondent in September 2010 as a residential support worker. At the time of her dismissal she was located at Rosemeadow House, a Disability Trust group home located near Campbelltown, NSW. This group home provides residential care to clients who have support needs arising from motor vehicle accidents. The NSW Lifetime Care and Support Authority (the Authority) contracts with The Disability Trust to provide this care.

[11] The applicant’s duties included driving clients to and from appointments, to and from other activities, and for leisure and recreation. A valid driver’s licence is an essential qualification for her position.

[12] The respondent had been provided with a new Toyota Hi Ace van by the Authority in late October 2012 to be used by Rosemeadow House. The van was supplied to the Authority by Kearly Auto trading as Auto Extra’s, who have a contract with the Authority to supply, maintain and insure these vehicles.

[13] On 5 December 2012 the applicant was driving the van to Liverpool to collect a client, Mr Dominic Godwin. Her co-worker Ms Vivian Turtle was accompanying her.

[14] The applicant says that on this occasion the “vehicle started swerving all over the place”. 2 The applicant stopped the van and her co-worker Ms Turtle took over the driving and proceeded to Liverpool and returned to Rosemeadow House. The applicant says that this was the day that she first noticed that the vehicle had a problem.3

[15] On 5 December 2012, upon return from this drive, Ms Karodza completed a Hazard Report and Ms Turtle completed an Incident/Injury Report.

[16] In the Hazard Report Ms Karodza wrote: 4

“What causes this report to be recorded? Describe what happened and what you did about it. Include area and task involved and any equipment, tools or people involved.

Two staff on the van headed to Liverpool BIU. Off Narellan Road curving to Hume Highway. Staff lost control van travelling the opposite direction crossed all lanes nearly hit the road sign. Staff managed to stop the van. Staff in shock changed/swap drivers.

What short term action/s have been taken?

Drive slowly till we come back to Rosemeadow House

Suggested Actions. Include any suggestions for reducing or eliminating the problem? (e.g use of mechanical devices or training).

The vehicle need to have electronic stability control.”

[17] The applicant says that she printed the blank Hazard Report from the computer at Rosemeadow House just prior to completing it.

[18] In the Incident/Injury Report Ms Turtle wrote: 5

“Driving along narellan Rd. exit to M5. the van would not merge to the left to exit. Mildred has to drive on a median strip to preventing from crashing to the sign. I Vivian end up driving to Liverpool to collect client Dominic Goodwin. Driving the van uncomfortable as its wobble alot and its like no wheel alignment at all.”

[19] On the same day the applicant wrote a note in the communications book for Rosemeadow House, at the direction of her supervisor, Mr Adelee Ayad, that the van was not to be driven until further notice.

[20] The action taken by the respondent to satisfy itself of the roadworthiness of the van was to contact the provider of the van, Mr Ian Kearly of Auto Extra’s, with the information about the incident, including a copy of the Hazard Report, and seek his advice. The advice received was: 6

“Hello,

The report is rather fuzzy and hard to read. From what I can understand the van veered across the road and nearly hit an object.

Could you send through a report on the road conditions? There may have been water or oil on the road to cause this incident.

If there was an issue with the van, the carer would have unable to return to Rosemeadow. Unfortunately stability control is not an option on this van.

Continue to use the van and report back with any issues. The van itself will be safe to drive. If there is a problem, please contact the Toyota dealer listed in the last page of the operation manual.

Kind regards

Ian Kearley”

Mr Kearly gave evidence, which was admitted without challenge and not subject to cross-examination, as follows: 7

“I reviewed the Hazard Report dated 5 December 2012. Based on my knowledge of the Mini-Bus, and based on my review of the Hazard Report, I was confident that there was nothing mechanically wrong with the Mini-Bus. This assessment was based on the fact that:

(a) I was aware that the Mini-Bus had passed a factory approved pre-delivery service completed by Sci Fleet Motors Pty Ltd (Toyota Dealership) which included a Road Test and Final Inspection.

(b) Between early September 2012 and the date of deliver [sic] of the vehicle in October 2012, I had driven the vehicle over approximately 1,000 kilometres and had never experienced any mechanical or other problems with the Mini-Bus; and

(c) I read in the Hazard Report that the Mini-Bus had been driven safely back to the Rosemeadow House after the incident. If there had been any mechanical problem with the Mini-Bus then the driver would not have been able to drive the Mini-Bus back to the Rosemeadow House.”

[21] The van was then taken for two ‘test drives’ by Ms Mary Bartlett (Team Leader, Rosemeadow House) who had been driving such vans for 37 years. She said the van “felt okay”. 8 The investigation did not include a physical mechanical inspection. Ms Bartlett said that the van axle is quite long and when the van is driven on windy days it “sways a little bit”.

[22] On 18 December 2012 further notice was provided in the form of a note in the communications book written by Ms Bartlett to the effect that the van was permitted to be driven from that point onwards, with the qualification that it should be driven slowly in windy conditions.

[23] The applicant did not drive the van herself again until 2 January 2013. The van was driven by other staff without apparent incident until 23 December 2012 and again without apparent incident until 2 January 2013, including by Ms Leila Griffiths on 25 December and 30 December 2012. Ms Griffiths gave evidence that she was not forced to drive the van. She said: 9

“Look, we’re not forced to drive the van because, firstly, the van is drivable. It was written in the communication book. We are not forced. It is our choice, but even if I drove the van, I drove it with caution.”

[24] Ms Griffiths drove a client, Kevin Turner, in the van, on 23 December 2012 and her evidence is that the van swerved while she was driving. She says that she wrote a Hazard Report on the same day. Ms Griffiths says that she printed the blank Hazard Report out from the computer in Rosemeadow House unaided, however the applicant says she printed the blank Hazard Report out from the computer in Rosemeadow House and gave it to Ms Griffiths and saw her complete it. 10 Ms Griffiths says she placed the completed report with her time sheet in timesheet pigeonhole. She says that on that day she told Ms Karodza and Ms Bartlett, her Team Leader, about the swerving of the van. She says she told Ms Bartlett that she had completed a form. This is contested by the evidence of Ms Bartlett who says Ms Griffiths told her that the she had asked the client Kevin Turner to complete a form however he had not done so. Nothing was written in the communications book on that day to alert anyone about the van. It is the uncontested evidence of Mr Ayad that he received an email from the applicant on 23 December 2012, after the applicant says she saw Ms Griffiths write the Hazard Report, and nothing was mentioned about this hazard.

[25] Ms Griffiths was paid between 23 December 2012 and 5 February 2013, suggesting that her timesheet was received by management, yet the Hazard Report she believed she placed with the timesheet on 23 December 2012 was not seen. She gave evidence that she found it on 3 February 2013 in the pigeonhole below the completed timesheet pigeonhole. She says she told Mr Ayed on 4 February 2013 that it was there along with other reports and she clipped them all together, took them to the office and gave them to Amanda Vogan.

[26] It is the uncontested evidence of Mr Matthew Flood that there appeared to be no activity on the computer at Rosemeadow House on 23 December 2013; however the computer at Rosemeadow House had been accessed on 5 February 2013.

[27] I accept that the Hazard Report was not brought to the attention of management until 5 February 2013; however on the available evidence I am unable to come to a conclusion as to whether the form was completed on 23 December 2012 or sometime later. It is the policy of The Disability Trust that the form must be forwarded to the relevant service manager immediately. This is clearly marked on the form. Ms Griffiths circled the field in the Hazpak Matrix corresponding to ‘Very likely/Kill or cause permanent disability or ill health’ which corresponds to a score of ‘1: Urgent – act now, notify supervisor immediately, supervisor to notify Senior Manager & HR’. It is uncontested that Ms Griffiths did not follow this procedure and she was later disciplined for her failure to follow policy in this regard.

[28] The Hazard Report completed by Ms Griffiths reads (with the questions on the form italicised): 11

“What causes this report to be recorded? Describe what happened and what you did about it. Include area and task involved and any equipment, tools or people involved.

RSW [Residential support worker] was driving the van. Started swerving at 80 kilometres per hour. Client Kevin was sitting in the front of the van. Swerved several times along the road. I have to slow down to 60 to 70 kms/ph and cars from behind started to flick their headlights.

What short term action/s have been taken?

I have to slow down along the road for the safety of both client and staff, causing the other cars to slow down too because I was under the speed limit which I can booked of if there was police. I am avoiding any accident.

Suggested Actions. Include any suggestions for reducing or eliminating the problem? (e.g use of mechanical devices or training).

Although the van does not swerved at a certain speed, it is wise that the van be checked by professional/accredited mechanics before it’s too late, for OH&S [occupational health and safety] purposes.”

[29] She gave evidence that on 23 December 2012 the swerving of the van stopped when she slowed down and she was able to complete the trip. This evidence and the content of her report are consistent with the van being difficult to drive, but fall well short of convincing me that there was a steering malfunction as contended by the applicant.

[30] The respondent says that they were alerted to the existence of the report by a WorkCover investigator on 5 February 2013, the date of the WorkCover investigation occurring after the 2 January 2013 accident. That prompted Mr Ayad to ask Ms Griffiths for it. I note that the WorkCover investigation did not lead to any action on the part of WorkCover against the respondent.

[31] On 2 January 2013 the applicant was driving the van on the Hume Highway at Casuala, NSW for the first time since driving it on 5 December 2012, and she had an accident. The applicant says the van swerved and she panicked and pressed the accelerator rather than the brake. It is reasonable to conclude that this was the reason the van travelled so far across the lanes of traffic and ran into the wall of a house. A client, Mr Steven Kane, was in the van with her and they both sustained injuries and were taken to hospital. Mr Ayad went to the hospital and spoke to the applicant. The applicant says she did not speak about the accident to him; however he was able to go home that evening a write an Incident/Injury Report containing information he could have only received from the applicant. The applicant was discharged from hospital on the same day and was absent from work on workers compensation until her first shift back on the evening of 7 January 2013.

[32] On the night of 2 January 2013, after he returned from seeing the applicant and the client in hospital Mr Ayad completed an Incident/Injury Report. He downloaded a blank Incident/Injury Report form from the Disability Trust intranet from his home computer, completed the form and sent it to Human Resources around 7:00 pm. This Incident/Injury Report was version controlled as follows: “Form-H-10-01: Incident/Injury Report date revised: March 2012 Version 2”.

[33] The respondent says that the applicant met with Mr Ayad on 3 January 2013 to complete insurance paperwork. This is established to my satisfaction due to the text message of 3 January from Mr Ayad to the applicant, Mr Ayad’s recollection that the applicant was going to see the doctor on the day they met, a medical certificate dated the same day, and the insurance form completed by the applicant being signed and dated 3 January 2013.

[34] The applicant says that Mr Ayad gave her a blank Incident/Injury Report form at her request on 4 January and that she saw him print it off the computer at Liverpool House on that day. 12 She says she did not complete that particular form first but completed another blank Incident/Injury Report form, version controlled as version 2 (marked as Exhibit A8), that she obtained from a shelf in Rosemeadow House on 2 January 2013.13 This document was not known to the respondent until these proceedings and the representative of the applicant indicated that he had not been aware of it when he took his client’s instructions.14 The applicant says she then transferred the contents of Exhibit A8 to the form her supervisor gave her (marked as Exhibit A9), version controlled as version 3. She says she completed them both on 4 January 2013, in effect one after the other (A8 and then A9), and did not submit either of them but kept them on her file.

[35] The Incident/Injury Report marked as Exhibit A8 was version controlled as follows: “Form-H-10-01: Incident/Injury Report date revised: February 2011 Version 2”. It was filled out by the applicant as follows (with the questions on the form italicised): 15

“Describe what happened and what you did about it. Include area and task involved and any equipment, tools or people involved: (attach additional pages if required)

A staff member was driving the van vehicle plates B534FZ along M5 road at 70km/hr avoiding the swaying. Staff managed to slow down the van to 50-55 km/hr along the M5 East Camden, Liverpool way. On far end lane as I wanted to make a u-turn going back to Campbelltown at Merrick Avenue. I was about to approached a curve and the van swayed to the middle lane, as I checked on my view mirror there were cares behind me. Since it was a busy road I panicked and I was in shock which led me to accelerate instead and drove across three lanes going opposite direction that is when I hit the road sign Liverpool, and I could not stop and it drove across another road went through the fence and crashed onto a house that is when the van stopped. We had reported about this van before on 5th of December 2012 to the manager Adel Ayad and on the 18th of December 2012 there was a message in the communication book that the van was roadworth and can be driven without checked by professionals. On the 23rd of December around 10:40hs another hazard report was completed. The failure to provide duty of care and negligence put the staff member and clients in danger.

Section F - Injury Details

Was medical treatment / first aid administered? Yes

Describe what happened and what you did about it: (attach additional pages if required)

Was taken to Liverpool hospital both me (staff) and client) (Steven Kane) by ambulance to E.D Emergency Department waiting for chest x-rays to be done as I hit myself with steering wheel since the airbags didn’t deploy after the crash. The results came back clear and was given pain relief medications and a letter to my GP.”

[36] The Incident/Injury Report marked as Exhibit A9 was version controlled as follows: “Form-H-10-01: Incident/Injury Report date revised: January 2013 Version 3”. It was filled out by the applicant as follows (with the questions on the form italicised): 16

“Describe what happened and what you did about it. Include area and task involved and any equipment, tools or people involved: (attach additional pages if required)

RSW with client (Steven Kane) going for a drive along M5 road at 100-110 km/hrs zone the van sweved several times along the road. Staff have to slow down to 70 km avoiding swaying. Exit on Canden, Liverpool way at 50-55 kms/hr on far end lane as I wanted to make a U-TURN going back to Campbelltown at Merrick Avenue. Approached a curve and the van swayed to the middle lane, as I checked on my view mirror there were cars behind me since it was a busy road I panicked and in shock which led to accelerate instead and drove across three lanes going opposite direction that is when I hit the road sign (Liverpool) and I could not stop it drove across another road went through the fence and crashed onto a house that is when the Van stopped. We (staff, Vivian, Mildred, Teila) had reported about this VAN before on the 5th of Decemver 2012 to the manager ADEL AYAD. On the 18th of December 2012 there was a message from Team Leader (Meno) in the communication book that the VAN was roadworth and can be driven without checked by professionals. On the 23rd of December 2012 around 10:30hrs another hazard report was completed and reported to (Team Leader Meno) but nothing was done. So the failure to provide duty of care and negligence put the staff member and clients life in danger.

Section F - Injury Details

Was medical treatment / first aid administered? Yes

Describe what happened and what you did about it: (attach additional pages if required)

Both staff and client (Steven Kane) was taken to Liverpool hospital by ambulance to Emergency Department waiting for chest X-Rays to be done as I hit myself with steering wheel since the airbags did not deploy after the crash. RSW was discharged same day and given a discharge letter to my GP.”

[37] I think that the applicant is mistaken about the day she met with Mr Ayad and it was 3 January 2013. Also, I am not persuaded that Mr Ayad gave her a blank Incident/Injury Report form at her request on 4 January or 3 January for that matter. He says that had he downloaded a copy of the form on 4 January 2013 for the applicant to complete it would have been likely to be the same version that he downloaded and completed on 2 January 2013 and I accept the logic of that evidence.

[38] That neither form completed by the applicant (Exhibits A8 and A9) is the same version as the one completed by Mr Ayad 17 on 2 January 2013 puts the applicant’s evidence in doubt.

[39] Ms Morison (Quality Systems Co-ordinator for The Disability Trust) gave evidence that she was responsible for document control of all organisational documents for The Disability Trust. Her evidence was that after a series of exchanges with management to change the Incident/Injury report document controlled as version 2 she uploaded the Incident/Injury report document controlled as version 3 on 31 January 2013. She states “[t]he 31 January 2013 is the first time that the revised injury/incident report had been uploaded to the intranet, and it is the first time that the form was available to be accessed by staff”. In the light of this evidence I am satisfied that the applicant could not have completed the Injury/Incident Report marked as Exhibit A9 before 31 January. Thus the contention put to the respondent on 7 February 2013 and carried over to these proceedings that it was printed by Mr Ayad and completed on 4 January 2013 is likely to have been fabricated.

[40] Ms Carney (Executive Manager of The Disability Trust) gave evidence that in or around early February 2013 she attended a meeting with representatives of the Authority and one of them said that she did not want Ms Karodza driving an Authority van in the future. I accept that this conversation took place; however it does not constitute official direction from the Authority so must be treated as the expressed wishes of an Authority representative rather than the Authority itself.

[41] On 6 February 2013 the respondent wrote to the applicant requesting that she meet with them on 7 February 2013. The letter stated, amongst other things, “[t]his meeting is to discuss your recent negligent driving penalty issued by the police on 5^th December 2012.” I note that the date 5 December 2012 was corrected in evidence to 2 January 2013.

[42] The applicant attended the meeting on 7 February 2013 with Ms Carney and Ms Prosperi. She says she was asked why she hadn’t completed an Incident/Injury Report and she replied that her supervisor, Mr Adelee Ayad, told her not to because he had already completed one, and that she had tried to give him her report on 4 January 2013 but he refused to take it. The applicant denies saying that she tried to give the report to Mr Ayed on 4 January 2013. Ms Carney and Ms Prosperi say that the applicant did say this and, as they provided contemporaneous notes of the meeting, I regard that evidence as more persuasive than the applicant’s.

[43] The applicant provided an Injury/Incident report to Ms Carney and Ms Prosperi. The document she provided was Exhibit A9, version 3. The applicant also said that she told Ms Carney and Ms Prosperi that she had tried to lodge the report earlier by calling Melissa. This is contradicted by both Ms Carney and Ms Prosperi, who provided contemporaneous notes of the meeting, and I regard that evidence as more persuasive than the applicant’s.

[44] The respondent says that immediately after the meeting, Ms Carney and Ms Prosperi were leaving the meeting room and examining the document, and realised that Exhibit A9, version 3, was a form that was only available on the respondent’s computer system from 31 January 2013, so it could not have been sourced as described by the applicant on 4 January 2013.

[45] On 7 February 2013, following the meeting, the respondent wrote to the applicant to “show cause as to why employment should not be terminated”. Amongst other things the letter referred to the report dated 4 January 2013 (incorrectly referred to as a Hazard Report) and that the form was not available to be completed at that time.

[46] On 12 February 2013 the applicant replied to this letter through her solicitor.

[47] On 13 February 2013 the respondent wrote to the applicant replying to the letter of 12 February 2013 indicating, in effect, that the matters relating to the forms had not been addressed to their satisfaction and seeking a response by 14 February 2013

[48] On 14 February 2013 the applicant replied to this letter through her solicitor saying, amongst other things, “It matters not as to where Ms Karodza obtained the form from. It has no relevance whatsoever as to any of the issues which are relevant to the possible dismissal of Ms Karodza.”

[49] On 14 February 2013 the respondent wrote to the applicant terminating her employment due to the accident of 2 January 2013 and her conduct during its investigation.

Legal framework

[50] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 (‘Unfair Dismissal’) of the Act. In this matter there is no contest that Ms Karodza is a person who is protected from unfair dismissal pursuant to s.382 of the Act and I must apply ss.385-387 of the Act, which read as follows:

“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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[51] I must apply my mind as to whether Ms Karodza was unfairly dismissed. There is no dispute that she was dismissed so s.385(a) of the Act is satisfied. The respondent is not a small business employer so s.385(c) is not relevant. There is no contention that this is a case of genuine redundancy so s.385(d) does not apply. Therefore, in determining whether the applicant was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable.

[52] If I find that Ms Karodza was unfairly dismissed I then must apply the provisions of Division 4 of the Act in order to determine the appropriate remedy as between reinstatement or the payment of compensation.

[1] Guidance as to the meaning of the expression “harsh, unjust and unreasonable” can be found in the decision of Sheppard and Heery JJ in Bostik (Australia) Pty Ltd v Dimitrja Gorgevski (No 1) 18where their Honours said, in relation to the wording of Clause 9 of the Manufacturing Grocers Award 1985:

“These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee’s misconduct.”

[2] In considering whether a dismissal was harsh, unjust or unreasonable, I must take into account, amongst other things, 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).

[3] Guidance as to the meaning of the term ‘valid reason” is provided by Selvachandran v Petron Plastics Pty Ltd. 19 In that decision of the Industrial Relations Court of Australia, Northrop J said:

“In its context in subsection 170DE(1), the adjective ‘valid’ should be given the meaning sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirements applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and the employee are treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, unreported, when considering the construction and application of section 170DC.”

[4] Section 170DE(1) of the Industrial Relations Act 1988 was in broadly similar terms to the corresponding provisions of the current Act.

[5] In considering whether Ms Karodza’s dismissal was harsh, unjust or unreasonable I will deal with each of the matters I am required to consider in turn.

(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)

[6] This is a case in which factual conflict is at the heart of the matter. My task is to draw conclusions, on the balance of probabilities, about which account of the relevant facts is more likely than not to be the accurate account. That is, I must determine, on the balance of probability, whether the conduct occurred. 20 I then must consider whether the conduct constituted a valid reason for dismissal.

[7] The respondent dismissed the applicant citing instances of conduct put forward as grounding this decision. Although they formed the view that her conduct was serious misconduct they chose to terminate her employment with two week’s notice by way of payment in lieu.

[8] These instances are found in the letter of termination of 14 February 2013: 21

“1. You have been issued with a penalty notice for the criminal offence of negligent driving, and this conduct clearly occurred during the course of your employment with the Trust: ...

2. The crash put at risk the health and safety of Trust staff and a client...

3. You have injured the reputation of the Trust with the NSW Lifetime Care and Support Agency...

The alleged 4 January 2013 Incident/Injury Report...

The alleged 23 December 2012 Hazard Report.”

[9] It is uncontested that an accident occurred on 2 January 2013 that injured the applicant and a client. It is uncontested that the applicant was given a penalty notice for negligent driving. The van was written off on 2 January 2013. There is no evidence that the police considered that the vehicle was a mitigating factor in the accident. In the absence of expert evidence it is very difficult to draw a conclusion between the competing theories surrounding the incidents. If there was a steering malfunction on the two occasions the van was driven by the applicant, it is curious that these occurrences were not experienced by all the other employees who drove the van on other occasions. Ms Griffith’s report, as surrounded as it was by uncertainty in terms of its journey to management, did not suggest a steering malfunction but a vehicle that was difficult to drive. In the light of this I think it is more probable than not that the two incidents arose because of a combination of the van’s lack of stability control, driving conditions and above all else the applicant’s poor driving skill.

[10] The respondent came to the conclusion that applicant’s driving capability was such that they could no longer allow her to drive clients. A representative of the Authority expressed the opinion that the applicant should not drive their vans anymore. The evidence disclosed that other vans provided by the Authority were of a similar standard to the van that was written off in the accident. In these circumstances I conclude that it was reasonable for the respondent to form the view that the applicant could no longer perform an essential duty of the job because to allow her to continue to drive these vans presented an unacceptable risk to the safety of clients, co-workers and the applicant herself. In this circumstance The Disability Trust had a valid reason to dismiss the applicant from her job.

[11] In the light of the evidence about the Incident/Injury Form presented to the respondent by the applicant on 7 February 2013 I conclude, on the balance of probability, that the applicant obtained version 3 of the Incident/Injury Report sometime after 31 January and before 7 February 2013 and completed it within this time period. Ms Bowen (Chief Executive Officer of The Disability Trust) said in her evidence 22 that “... the thing that I need to know most is that the people that work with our vulnerable clients – and they are vulnerable clients – are honest people.” I believe that the applicant was dishonest about the completion of the Incident/Injury Form. Whatever motivated her to invent this story is immaterial. She maintained and embellished it throughout these proceedings. This duplicity constitutes a valid reason for dismissal.

[12] In Treffry v SThree Australia Pty Ltd 23 Justice Bolton said :

“This is a case where the Company had grave and justifiable concerns in relation to the Applicant’s honesty and integrity. That is a matter which goes directly to the employment relationship and the need for people to be honest in relation to the issues pertaining to that relationship. The dishonesty in this case might be regarded as foolish, but it was something more than that. It was planned, premeditated and persisted with and it was further compounded by the later conduct and the failure of the Applicant to tell the Company the true position in the two meetings of 22 and 25 February.”

[13] In that matter Justice Bolton found that the applicant’s dishonesty constituted a valid reason for dismissal and I conclude similarly in this matter.

(b) whether the person was notified of that reason

[14] It is uncontroversial that the applicant was notified of the reasons for her dismissal. This factor does not weigh in favour of a conclusion that the dismissal was harsh, unjust or unreasonable.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[15] The applicant was given an opportunity to respond to the reasons given for the dismissal. She received three letters from the respondent and attended a meeting. She was supported in the meeting by her solicitor and two of the letters were responded to by her solicitor.

(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

[16] The applicant was given the opportunity to have a support person present in the meeting of 7 February 2013 and availed herself of this opportunity with her solicitor, Mr Ford attending by phone.

[17] I see no procedural flaw in the in the circumstances outlined in relation to (c) and (d) above that would cause me to conclude that the dismissal was harsh, unjust or unreasonable.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[18] The dismissal relates to the conduct not the performance of the applicant and I conclude that this factor is neutral in my consideration of whether the dismissal was harsh, unjust or unreasonable.

(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

[19] The Disability Trust is a large enterprise and I have not found any procedural flaws in the process of dismissal. In the light of this I conclude that this factor is neutral in my consideration of whether the dismissal was harsh, unjust or unreasonable.

(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

[20] Consistent with (f) above, since I have not found any procedural flaws in the process of dismissal, I conclude that this factor is neutral in my consideration of whether the dismissal was harsh, unjust or unreasonable.

(h) any other matters that FWC considers relevant

[21] There are no other matters that I consider relevant.

Conclusion

[22] I conclude that the respondent had a valid reason for the dismissal of the applicant and I conclude that the dismissal was not harsh, unjust or unreasonable. Therefore I find that the dismissal was not unfair and the application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr H Ford, solicitor, for the applicant.

Mr P Moorehouse, counsel, for the respondent.

Hearing details:

2013.

Sydney:

July 1, 2 and 15.

 1   Transcript of 1 July 2013, PN612.

 2   Exhibit A1.

 3   Transcript of 1 July 2013, PN150.

 4   Exhibit A3.

 5   Exhibit A2.

 6   Exhibit R9, Attachment AA2.

 7   Exhibit R19, p2, para 13.

 8   Transcript of 2 July 2013, PN2455.

 9   Transcript of 15 July 2013, PN2906.

 10   Transcript of 1 July 2013, PN459.

 11   Exhibit A7

 12   Transcript of 1 July 2013, PN646.

 13   Transcript of 1 July 2013, PN661,776.

 14   Transcript of 1 July 2013, PN570.

 15   Exhibit A8.

 16   Exhibit A9.

 17   Exhibit R6, Attachment AA10.

 18 (1992) 41 IR 452 at 459.

 19 (1995) 62 IR 371 at 373.

 20   Edwards v Giudice and Others (1999) 169 ALR 89.

 21   Exhibit A11.

 22   Transcript of 1 July 2013, PN1547.

 23   [2013] FWC 3697 at [10].

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