Miss Fiona McInnes v Peppers Ruffles Lodge and Spa
[2016] FWC 6537
•12 SEPTEMBER 2016
| [2016] FWC 6537 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Miss Fiona McInnes
v
Peppers Ruffles Lodge and Spa
(U2015/16698)
DEPUTY PRESIDENT ASBURY | BRISBANE, 12 SEPTEMBER 2016 |
Application for relief from unfair dismissal.
1. BACKGROUND
[1] Ms Fiona McInnes applies under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to her dismissal by Australian Useu Pty ltd ATF Australian Useu Discretionary Trust T/A Peppers Ruffles Lodge & Spa (Peppers). Ms McInnes was employed by Peppers and its predecessor in guest services performing housekeeping duties, from on or about July 2011 until 22 November 2015. Peppers is a 5 star resort in the Gold Coast hinterland that provides accommodation, day spa and hospitality services.
[2] Ms McInnes claims that her dismissal was unfair because the performance issues relied upon by Peppers in dismissing Ms McInnes did not fall within her position description or were untrue; she was not warned about any performance issues; no meetings about such issues were held; and there was no opportunity for her to improve her performance. Peppers asserts that Ms McInnes was dismissed from her employment for consistently low performance following a series of warnings issued by current and previous management and maintains that the dismissal was not unfair.
[3] Ms McInnes’ application was filed on 13 December 2015 within the time required in s.394(2) of the Act. It is not in dispute that Ms McInnes is a person protected from unfair dismissal as defined in s.382 of the Act. Peppers is not a small business and the Small Business Fair Dismissal Code is not relevant to this matter. The dismissal was not a case of genuine redundancy. The matter was dealt with by way of a Hearing, as it was considered that this was the appropriate course. An interpreter was present to assist Peppers’ representative, Mr Gong, and some witnesses.
[4] Neither party complied with Directions. Ms McInnes material was filed late notwithstanding a non-compliance hearing, the provision of template documents and several extensions being granted to her. Peppers did not file a response to the application and conciliation conferences were adjourned once because of failure on the part of Peppers to respond to Directions and once at the request of Ms McInnes. When the file was allocated to me, I was required to adjourn hearing dates because of non-compliance with Directions by both parties and subsequently, the Hearing days were reduced from three to one and a hearing was held on 20 June.
[5] When Ms McInnes did file material, it consisted of a series of illegible photographs, a number of statutory declarations from witnesses and an email setting out Ms McInnes’s witness statement. At the Hearing, Ms McInnes gave evidence on her own behalf. 1 Ms Miranda Kelly, also gave evidence in support of Ms McInnes’ application.2 Unsuccessful attempts were made during the Hearing to contact other witnesses whose statements Ms McInnes sought to rely on. As these witnesses were not available for cross-examination at the time of Hearing and their evidence was of limited relevance to the issues in dispute, their statements were ultimately not received.
[6] Mr Kevin Gong, General Manager of Peppers, gave oral evidence at the hearing. Mr Gong was allowed to give evidence and to tender documents, notwithstanding that a witness statement setting out his evidence was not filed, contrary to the Directions issued for the Hearing of this matter. Peppers also relied upon evidence of Ms Yvonne Wang, 3 and Ms Serena Fang4 and provided witness statements from both persons. Ms Wang and Ms Fang attended and gave evidence at the Hearing and were cross-examined.
[7] The documents tendered by Mr Gong at the hearing in an attempt to establish that Ms McInnes was warned about her work performance, were problematic. Ms McInnes claimed that she had never seen most of them prior to her dismissal meeting. It was also apparent that the copies of some of the documents Ms McInnes took with her when she left the dismissal meeting on 22 November 2015 differed from those tendered by Mr Gong. Mr Gong’s version of the documents had notations or alterations which were not on the copies tendered by Ms McInnes.
2. LEGISLATION
[8] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to apply the criteria in s.387 of the Act, as follows:
(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.
[9] The employer bears an onus of establishing that there was a valid reason for a dismissal.5 A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”6 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,7 and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.8 While the employer bears the onus of establishing the validity of the reason for dismissal, the dismissed employee bears the onus of establishing that the dismissal was unfair.
[10] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.9
3. EVIDENCE AND SUBMISSIONS
[11] Ms McInnes was dismissed by Mr Gong at a meeting on 22 November 2015, where she was shown a number of written warnings alleged to have been given to her previously. Ms McInnes states that she had not previously seen these written warnings or been warned in respect of her performance. Ms McInnes said that she requested copies of all documents shown to her at the termination meeting and left the meeting with a number of those documents.
[12] Ms McInnes’ witness statement was in the form of an email, which stated as follows:
“My name is Fiona Mcinnes and I started working for peppers Ruffles lodge and spa from July 2011 and I was employed as a part time guest service agent. The hours I did varied from week to week as it depended how much business we had but the majority of the time I had a few days a week of work. Roughly my pay was anywhere from $100 to $700 per week. So on the 9th November 2015 I received my termination notice by Kevin for poor work performance which I had no knowledge about because I had no work performance meetings about these incidents at all and I have questions regarding what's actually written on the disciplinary notices that I was given so I am seeking 6 months compensation for my unfair dismissal as since I have been gone from peppers I haven't had any regular work as there isn't much housekeeping work at the moment so I haven't had a proper income coming in and have gotten behind in some of my bills that I am still trying to catch up on because of all this so was hoping to fix if I got compensated for being unfairly dismissed” 10
[13] Ms McInnes gave further oral evidence at Hearing. Ms McInnes states that she commenced employment on a casual basis but subsequently commenced employment on a part-time basis with Peppers. 11 Ms McInnes’ contract of employment was in evidence before me.12 The contract is dated 21 March 2014 and is for the position of part-time Guest Service Agent commencing 21 March 2014. The contract refers to an attached position description, which is not in evidence. The hours of work are said to be “an average of 38 hours per week”. Ms McInnes’ evidence is that her hours fluctuated during her employment.
[14] The evidence established that Peppers is part of the Mantra Group and that at some point in 2015, Mr Gong took over the management of the property. There is no evidence of a further contract of employment between the parties that is said to supersede or replace the contract of 21 March 2014. According to the Form F3 – Employer response filed by Peppers, the reasons for Ms McInnes’ dismissal were:
• Consistent low performance;
• Lack of improvement in performance following training, reviews and discussions; and
• Consistent complaints from guests in regards to the cleanliness of rooms that had been cleaned by Ms McInnes.
[15] Peppers also stated in the Form F3 Response that:
• There had been verbal discussions with Ms McInnes in relation to her performance and the quality of the cleaning of rooms undertaken by her;
• Ms McInnes had been shown how to clean and make up a room properly;
• Photos of a room Ms McInnes had cleaned had been shown to Ms McInnes to highlight issues; and
• Former management had also issued Ms McInnes with warnings in relation to her performance.
[16] Mr Gong tendered a bundle of documents said to establish that Ms McInnes had been warned about her work performance by previous and current management. In evidence before me are two versions of a “Team Member File Notice” that record a date of 29 November 2014 (the 29 November Notices). Both 29 November Notices record Ms McInnes’ name and that Ms McInnes’ position is “GSA-HOUSEKEEPING”. The version of the 29 November notice filed by Peppers contains handwritten notes; the version filed by Ms McInnes does not.
[17] Under the heading “Details of the incident that should be noted for future reference” both versions of the 29 November Notice contain the following:
“Attention to details
November 20 cleaned Owners Villa with Fiona. Thompson and family checked in to Owners Villa (November 21), glass washer has dirty glasses, crockery and cutlery.
November 24 cleaned with Ashleigh details of the following (see attached) was not up to standards
Hampering the operations with guest complaining about the rooms that we sell, losing money due to poor quality and attention to details
2nd Verbal warning due to low standard set to junior staff and for not following memorandum given by the previous Housekeeping Manager and General Manager.” 13
[18] The version of the 29 November Notice tendered by Ms McInnes is not signed by any person but the name of Bernadette Cortes, Operations Manager, is typed into the form as “Person Recording Incident Name”.
[19] The version of the 29 November Notice filed by Peppers has been edited and contains handwritten notes. Peppers’ version has a line drawn through the second line beginning with “November 24 cleaned with Ashleigh” and a handwritten notation is included stating what appears to be “Zane” next to it. The document also has a handwritten strikethrough over “2nd Verbal warning” which is replaced by “1st VERBAL WARNING”.
[20] Peppers’ version of this warning also includes handwritten notes in the section headed “NOTES:” Those handwritten notes state:
“Fiona called in sick when she was about to be informed about her board and work.”
[21] Further, under the notes section with a heading “Action that has been taken in regards to this incident:” are the following handwritten notes:
“Fiona would like to be called the day after a guest complaints (sic).
Fiona thinks that her work is up to standards. Did talk to Fiona on the 3rd of December at 14.30 about details of her work. Board and complaints will be furnished to her in next shift.”
[22] Peppers’ version of the 29 November Notice has a number of signatures at the bottom of the page including the signature of Ms Cortes. Ms McInnes maintains that she first received and saw this document on the day of her dismissal and took it with her when she left that meeting. 14 Ms McInnes states that she did not recall a meeting occurring in November 2014.15
[23] Ms McInnes submits that the fact that the notice refers to “cleaned Owners Villa with Fiona” and “cleaned with Ashleigh” indicates that the 29 November File Note may have originally been written about another team member although Ms McInnes had worked with Ashleigh at one point. 16 Mr Gong stated that the 29 November File Note, including the handwritten notes, was prepared by the former manager and he found the notice on Ms McInnes’ HR file.17 In response to questions from me, Mr Gong was unable to explain how Ms McInnes had a version of this notice in her possession which had no annotations and why the version on Ms McInnes’ HR file differed from the one Ms McInnes had. Despite repeated attempts to elicit this information, Mr Gong was not able to clarify the inconsistencies between the documents.18
[24] Exhibit 6 in the proceedings is a “Team Member File Note” dated 19 January 2015. The 19 January File Note is handwritten and records the team member details as Fiona McInnes. Under the heading “Details of the incident that should be noted for future reference” is the following handwritten note:
“Attention to details 10.45 – 11.00am
Sick Days have in Doctors Certificate
Check Roster by email to Vicki
Check Times in Rooms
Eye For Details
Check list
Pick-up speed”
[25] The 19 January File Note is signed by Ms Brook and Ms McInnes. Also tendered by Peppers was a typed document heading “Meeting Minutes – Monday 19 January 2015 @ 11.00 hours”. 19 The contents of that document reflects the file note and indicates that the following matters were discussed with Ms McInnes at the meeting on 19 January 2015:
• Lack of attention to detail in matters such as bed corners not being tight or straight, fridge not wiped over, glasses not clean, bathroom amenities not restocked and towels not rolled tightly or straightened;
• Reliability and constant sick days amount to 48 hours of annual leave and 12 hours of sick leave in December and the need to provide medical certificates to support sick leave absences;
• Correspondence to go through Ms McInnes’ direct report and not the manager.
[26] In her evidence in relation to this meeting, Ms McInnes said in response to questions from me:
“Do you remember that meeting?---Yes, I remember that meeting, yes.
That says that there were discussions with you about your lack of attention to detail, e.g. bed corners not tight or straight, fridge not wiped over, glasses not clean, bathroom amenities not restocked and towels not rolled tightly or straightened?---Okay.
Do you recall a discussion about those matters?---Not off the top of my head, but I do remember that meeting, yes.
And you were constantly having sick days. There was a discussion about that?---Yes.
Do you recall that discussion?---Yes, yes.
And all correspondence needed to go through Vicky, as she is your direct report, not Eseta Cowley?---Yes.
You raised a concern about your hours and were informed that when your attention to detail and efficiency picked up, your hours would match?---Yes.
So you do recall that?---Yes, I do remember that meeting, yes.
Perhaps I can show you that?---But that was when Eseta was the general manager, not Kevin. I'm not sure if that makes a difference or not.
Do you recall a file note being prepared at that point?---Yes, I do, yes.
So you recall that document?---Yes.
So you do agree that in January 2015, there was a discussion with you about your efficiency, the quality of your work and your attendance?---Yes.
That is your signature on the bottom of the document?---Yes, it is, yes.” 20
[27] Peppers also tendered a “Team Member File Note” that refers to Ms McInnes and is dated 9 April 2015 (the 9 April File Note). The “Position” on the 9 April File Note is struck out and has a handwritten notation on it “GSA”. Under the heading “Details of the incident that should be noted for future reference” is the following typed note:
“File Note Regarding presentation
- Grooming
- Presentation
- Pride in appearance” 21
[28] Under the heading “Action that has been taken in regards to this incident” is the following typed note:
“Ensure that when you come to work your grooming and the presentation in yourself is 100%”
[29] The 9 April File Note is signed and dated by Ms Sarah King, Human Resources and Finance Coordinator. Ms McInnes has not signed the 9 April File Note. Ms McInnes does not recall the discussion recorded in the 9 April File Note. 22
[30] Also in evidence are two versions of a “Team Member Disciplinary Notice” that are entirely handwritten. Both notices are dated 19 August 2015 (the 19 August Notices). The version of the 19 August Notice filed by Ms McInnes has the name “Fiona Brook” recorded as the team member details. Ms McInnes’ version of the Notice is signed by Mr Kevin Gong and Ms Serena Fang. Both signatures are dated 21 August 2015. Under the heading “Agreed Actions Required”, Ms McInnes’ version states:
“Please refer to your SOP (standard operating procedures).”
[31] The version of the 19 August Notice filed by Peppers contains a handwritten note that does not appear in the version tendered by Ms McInnes. That note is written beside the section heading “Details of Performance/Behavioural Issue” and is as follows:
“Please see attached photos of executive suite after total clean” 23
[32] The version of the 19 August Notice tendered by Peppers 24 includes Ms McInnes’ name and does not refer to Ms Brook. There is an additional handwritten notation next to the section heading “Details of Performance/Behavioural Issue” that states:
“On 19 Aug. KG had found all the issues with the rooms and discussed with FM on 28/08/2015.”
[33] Under the section “Team Member Comments” there is an additional handwritten notation on the Peppers’ version of the document as follows:
“Had provided Fiona with a copy of the notice. Discussed with her regarding to the issues. Fiona took the notice & left.”
[34] That notation has been signed and it appears that the signature is that of Ms Fang. Ms McInnes states that there was another housekeeping staff member at that time named Ms Vicky Brook and Ms Brook was working with Ms McInnes on the date that these alleged errors arose. 25
[35] Ms McInnes states that she had not seen the version of the 19 August Notice with the additional handwritten notations that was filed by Peppers until the day of Hearing. 26 In her oral evidence, Ms McInnes initially did not accept that a meeting or discussion occurred on 19 August 2015.27 However, Ms McInnes did eventually accept that she recalled a discussion with Mr Gong on 19 August 2015 relating to the executive suite and the standard of cleaning.28 The following exchange occurred with Ms McInnes about the discussion on 19 August 2015:
“What do you say about those?---Well, some of them - with the executive - I remember that day when he spoke to us, like he come out and spoke to me and Vicky and he said some of the things that we missed, because we hadn't finished cleaning by that point - - -
Hang on. So you remember a discussion on 19 August about the executive suite?---Yes, so he come out and spoke to us and just told us things that we had missed, but there was no formal meeting or anything about it, but he just come out and spoke to us when we were getting stuff from our - - -
Mr Gong spoke to you that day?---Yes. He come out while we were getting some stuff from our little buggy, we were getting some supplies and stuff, and he come out and said some of the things that we'd missed, so we just - and we hadn't finished vacuuming and mopping by that point, and then we just went back in there to fix them.
So you do agree that on 19 August, Mr Gong did raise an issue about the executive suite and the standard of the cleaning?---Yes, but I hadn't had a formal warning, like a proper warning, like a meeting about that.
Well, what did he say?---Just he told us stuff that we'd missed and we had to go fix it.
So he wasn't happy about it?---No.” 29
[36] The photos (referred to in the 19 August Notice as attached) are also filed in two versions. It appears that the photos were made into a powerpoint presentation by Peppers. Ms McInnes filed a slideshow version of the powerpoint, which has multiple slides per page. Ms McInnes’ evidence is that she did not see either version of the photos until the day of her dismissal.
[37] Ms McInnes does not accept that Ms Fang was present for the discussions on 19 August 2015. 30 Ms McInnes states that Mr Gong spoke with Ms McInnes about items that had been missed in the cleaning of the executive suite and that she returned to correct the missed items.31
[38] Mr Gong maintains that on 19 August 2015 he had a meeting with Ms McInnes where Ms McInnes was shown the photographs of the executive suite inspection and that Mr Gong referred Ms McInnes to the standard operating procedures. 32 Mr Gong states that Ms McInnes was shown the photographs on the computer in the presence of Ms Fang. According to Mr Gong, Ms McInnes refused to admit any fault, was very irritated and left the meeting.33 Mr Gong states that the meeting occurred at 11am in the office behind reception. Later in his evidence, Mr Gong stated that Ms McInnes refused to even look at the photos.34 Mr Gong was unable explain the differences between the two notices and in particular the two different names on the two versions of the Notice.
[39] Ms Fang states that she performed room inspections with Mr Gong on 19 August 2015 in the executive suites and that she took the took the photographs in the powerpoint presentation. 35 Ms Fang states that the room was poorly cleaned and that there was a lack of attention to detail. Ms Fang lists beer in the fridge that was passed expiry date and human waste remaining in the toilet from the previous guest as the two most serious issues during this inspection. Ms Fang states that as Peppers is a five star resort, cleanliness is of the highest importance. In Ms Fang’s opinion the quality of the cleaning undertaken by Ms McInnes on this occasion showed her “attitude”.
[40] Ms Fang also states that after inspecting the room Mr Gong spoke with Ms McInnes about the standard of the executive suite cleaning and requested that Ms McInnes return to the executive suite to clean it again as a guest was due to check in. It is unclear whether Ms Fang was present with Mr Gong when he discussed the issue with Ms McInnes on 19 August 2015.
[41] On 21 August 2015, Ms Fang and Mr Gong had a discussion with Ms McInnes about those matters identified during the 19 August inspection. Ms Fang recalls that Ms McInnes was told that she needed to pay more attention and have the right attitude towards her work. Ms McInnes responded that she would, took a copy of the 19 August Notice and left.
[42] Ms Fang recalls that Mr Gong showed Ms McInnes the photographs of the executive suite clean and the issues identified by Ms Fang and Mr Gong during the inspection. Ms Fang states that Ms McInnes was upset and angry, stating that it wasn’t her fault and that she “took off”. 36 Ms Fang confirmed that Ms McInnes did take a copy of the documents with her. In response to a question from me about the fact that the two versions of the notice have different names on them Ms Fang said that Ms Brook was another employee who was also given a warning about the standard of the executive suite clean at the time. Ms Fang accepted that it was possible that in writing the notices she wrote the incorrect name on the notice.37
[43] In response to an assertion from Ms McInnes that the two versions of the 19 August Notice were completely different with respect to handwriting, signatures and spacing, Mr Gong said that he handwrote two copies of the notice for each employee, which explains the differences between the version retained by Peppers and the one taken from the meeting by Ms McInnes. Exhibit 8 includes a series of photographs contained in a powerpoint presentation titled “Room inspection No. 5 Tree House” dated 23 August 2015. Ms McInnes’ evidence is that she did not see those photographs prior to the hearing of her unfair dismissal application. 38
[44] Mr Gong said that on or around 23 August 2015, he inspected the Tree House and identified issues with the housekeeping service performed by Ms McInnes. Mr Gong states that he took Ms McInnes to the site to show her the problems with the cleaning. 39 Ms McInnes refused to accept that there was a problem with the housekeeping service so Mr Gong took the photos.40
[45] There are also two versions of a “Team Member Disciplinary Notice” said to have been issued to Ms McInnes on 9 November 2015. Both versions of the 9 November Notice record Ms McInnes’ name and that Ms McInnes is “Staff Part Time” in the housekeeping department. The version of the 9 November notice tendered by Peppers contains handwritten notes; the version filed by Ms McInnes does not.
[46] Next to the section heading “Details of Performance/Behavioural Issue” the following typed response appears on both versions of the document:
“Issue:
On 7th November 2015, the flooring the restaurant was dirty. GM asked to clean on 3 separate occasions, but the floor was still not clear. GM also found a dead cockroach. That day, it’s also the duty of cleaning staff rostered on to do the turndown service while guests are at dinner. When guest almost finished dinner but turndown service is not done. arrive at 5pm but till 8pm, turndown service not done.
Performance/Behavioural issue:
As this is the 3rd warning regarding job performance is not up to standard in many occasion, this is notice that we are terminating your employment.” 41 (errors in original)
[47] The version of the 9 November Notice tendered by Ms McInnes is signed by Mr Gong The 9 November Notice tendered by Peppers is the same as that filed by Ms McInnes except that it is also signed by Yvonne Wang and contains a handwritten note “[F]iona don’t want to sign this letter and go away directly”.
[48] At Hearing, Ms McInnes stated that she first saw the 9 November Notice was on the date of her dismissal – 22 November 2015. 42 Ms McInnes’ evidence is that the document that she tendered43 , which does not contain any handwritten notations, was the document handed to her at the time of her dismissal after she requested a copy of the documents shown to her.44 Initially in her evidence Ms McInnes did not agree that there was a meeting on 9 November 2015, as recorded by the 9 November Notice.45 Subsequently, Ms McInnes did accept that Mr Gong spoke with her on or about 7 November 2015 regarding the unclean floor but maintained that Mr Gong did not mention a dead cockroach.46 Ms McInnes states that she was directed by Mr Gong to clean the floor, and that she did so.
[49] Ms McInnes does not accept that the discussion with Mr Gong on or about 7 November 2015 was in relation to the turn down service and said that she was not aware of this concern until the day she was dismissed. 47 In relation to the turn down service, Ms McInnes states that on this occasion the turn down was not done at the usual time because the guests wanted their turn down done at a later time. Ms McInnes states that she discussed this with the Restaurant Manager because Mr Gong was not available at the time.
[50] Ms Miranda Kelly, also a former employee of Peppers, gave evidence about the events of 7 November 2015. 48 On 7 November 2015, Ms Kelly was working in the kitchen doing cleaning work. Ms McInnes was the “Turn Down Employee”, which included cleaning guests rooms during the night time and doing a turn down. When Ms McInnes wasn’t doing these duties she would assist Ms Kelly in the kitchen.
[51] Ms Kelly states that Mr Gong “disrespected” Ms McInnes on the evening of 7 November 2015. Ms Kelly states that Mr Gong was “telling me what to do and watching me with all eyes”. Mr Gong was “picking on dirty cutlery and fingerprints on Wine Glasses and tables not set properly”. Ms Kelly states that these errors were errors of the lunch time staff who should have set all these items properly ready for the night shift.
[52] Ms Kelly states that Mr Gong directed Ms McInnes to mop the restaurant floor, which was dirty. When Ms McInnes had finished, Ms Kelly states that it “wasn’t good enough for [Mr Gong]” who made Ms McInnes get on her hands and knees to scrub the floor with a scrubbing brush and cloth. Ms Kelly recalls that Mr Gong found a dead fly and blamed Ms McInnes for this and made her “go around and look for more dead bugs”.
[53] Ms Kelly recalls that guests at Peppers that night had requested that their turndown service occur later than usual as they were having a late dinner. Ms Kelly states that Mr Gong blamed Ms McInnes for not having done the turn down service even though Ms McInnes was doing what was requested by the guests. It is Ms Kelly’s opinion that Mr Gong was intending to find errors to raise with Ms McInnes in an attempt to make her quit her job. Ms Kelly states that the week prior to 7 November 2015, Mr Gong “employed all Chinese to work at” Peppers.
[54] Under cross-examination, Ms Kelly agreed that after Ms McInnes had mopped the floor there were visible streak marks 49 and that there was a dead insect50 although Ms Kelly’s recollection is that Mr Gong found the insect before Ms McInnes had mopped the floor. Ms Kelly accepted that Mr Gong was able to ask Ms McInnes to clean the floor regardless of whether it was the duty of the lunch time staff, but took issue with the way in which Mr Gong asked her and that he asked her to get down on her hands and knees to do it. Mr Gong does not accept that he specifically instructed Ms McInnes to get on her hands and knees to clean the floor. Ms Kelly was dismissed from her employment shortly after 7 November 2015.51
[55] Peppers submits that Ms McInnes did attend a meeting on 9 November 2015 and that the 9 November Notice records that meeting. Peppers further submits that Ms McInnes left the meeting and refused to sign or take the notice that was attempted to be given to her on that date. Mr Gong gives the following evidence in relation to the 9 November matters:
“I asked her to clean dirty floor but she only clean some area of it, and this should be done before the opening of the restaurant. She only clean very limited area. There were insects and dead cockroaches in the corners that she hadn't cleaned. Every evening we provide turn-down service to clients. One service is to provide a free or complementary alcohol and the container is crystal container with lid. On the evening of the 7th, the lid of the container was intact but, on the following morning, I found the lid disappear and instead there was tissue in the container as the lid. The second day, I clarify this matter with Fiona. She said it was due to an accident and she broke it. The container was to contain liquid for the clients to drink. If the clients find a tissue is used as the lid then we are going to face critical complaint and we may face serious penalty from the City Council. Thus I decided to sign this warning letter and issue it to her.” 52
[56] I raised with Mr Gong that the 9 November Notice indicates that Ms McInnes was to be dismissed that day. Mr Gong said that he intended to dismiss Ms McInnes but that Ms McInnes had become aware of his intention and in the following weeks Ms McInnes either did not attend for her shifts or was working at times which made it difficult for Mr Gong to see her. 53 Mr Gong accepted that there is no record of the concern in relation to the crystal container that he raised in his oral evidence at hearing.54 Mr Gong accounted for the discrepancies between the two versions of the documents by stating that Ms McInnes refused to sign the document but that notations were made recording this after Ms McInnes left with the unaltered version.
[57] As previously noted, the version of the 9 November Notice tendered by Peppers was signed by Mr Gong and Mr Yvonne Wang. Ms Wang provided a witness statement in relation to this matter 55, gave evidence and was cross-examined.
“I am writing this letter as the witness of the final warning meeting and dismissal of Fiona McInnes.
I was rostered on duty on the date which our general manager given the written warning to Fiona. I was asked to be the witness of the meeting. During the meeting, general manager Kevin Gong had given the warning letter to Fiona and explained that she had not done her job properly as the turndown services were late and she was on her phone while General Manager walked in. He also said that earlier of the day, he had asked her to do the restaurant flooring but had to redo a couple of times. He had emphasize the point of having the correct attitude. Fiona explained and said it was not her fault. Then Kevin said this is her last chance that she needed to have the right attitude and pay more attendtion (sic) while working.
Fiona did not sign the letter as she was upset.”
[58] Ms Wang could not recall the specific date on which this meeting occurred but agreed that it was her signature on the 9 November Notice and that she signed it after the meeting concluded. Ms Wang could not recall if Ms McInnes had already left at that time. 56 Ms Wang states that she was in the office sitting at her computer when she was asked to photocopy and scan some documents, which included photographs. Ms Wang was aware that Ms McInnes would be in the office for a meeting and that there would be documents to provide to Ms McInnes. In her oral evidence Ms Wang said that she was “sitting in the front and...saw the duty manager and Fiona talk about work issues or work matters”57. Ms Wang does not remember specifically what Mr Gong said at the meeting but does recall there were photographs at the meeting.58 Ms Wang did not state that she saw Ms McInnes being shown the photographs by states that Ms McInnes “should have been”59 shown the photographs.
[59] Ms Wang did not see Ms McInnes leave the meeting as Ms McInnes left through the rear door, when Ms Wang was sitting at reception near the front door. 60 Ms Wang is not able to say whether Ms McInnes left with any documents61 but does recall that Ms McInnes was requested to sign some documents62.
[60] In response to questions from me, Ms Wang said that during the meeting she was answering telephone calls and replying to emails and that there was door between where she was sitting and the part of the office were Mr Gong was having a discussion with Ms McInnes. 63Ms Wang also stated that at the beginning of the meeting she was in the office with Mr Gong and Ms McInnes but that if the phone rang she would leave the office to answer the phone call at reception.64
[61] Ms Wang drew a diagram of the office and reception area. 65 The diagram indicates that the office is a room that leads off reception. Ms McInnes and Mr Gong were inside the office, Ms Wang was seated at the reception desk but the door between the office and reception was open.
[62] In relation to her dismissal on 22 November 2015, Ms McInnes said that she was in the middle of cleaning a room and was told that Mr Gong wanted to see her. Ms McInnes went and saw Mr Gong in the restaurant and was told to meet him by the pool area. Mr Gong arrived and told Ms McInnes that she was dismissed and that the reasons for the dismissal were as set out in the paperwork that Ms McInnes filed in the Commission.
4. CONSIDERATION
Was there a valid reason for Ms McInnes’ dismissal?
[63] I am satisfied that there was a valid reason for Ms McInnes’ dismissal. In this regard, I accept that there were issues with the standard of her work and her attendance and that these had been previously raised with her both by Mr Gong and previous management of the Resort. Ms McInnes has a lengthy work history and I am satisfied that she knew the standards that were expected of her, and did not consistently meet those standards.
Was Ms McInnes notified of the reason for her dismissal?
[64] I am satisfied that Ms McInnes was notified of the reason for her dismissal. Those reasons are recorded in file notes and warnings that were given to Ms McInnes. Notwithstanding the inconsistent versions, the substance of the matters did not alter, and Ms McInnes accepted that the reasons given to her for dismissal at the meeting on 22 November 2015, are those set out in the file notes and warnings.
Was Ms McInnes given an opportunity to respond to the reasons for her dismissal?
[65] The 9 November 2015 Notice states “As this is the third warning regarding job performance is not up to standard in many occasion, this is notice that we are termination your employment”. It is Mr Gong’s evidence that he did not have an opportunity to discuss this with Ms McInnes for a number of weeks because Ms McInnes did not attend work or attended at times when he was not there. 66 I do not accept that Mr Gong went to any effort to give Ms McInnes an opportunity to respond to the reasons for her dismissal.
[66] Mr Gong is the Manager of the resort and Ms McInnes was a part-time member of the housekeeping staff. The proposition that Mr Gong had no control over her attendance or that Ms McInnes could evade him for a two week period after he had decided to dismiss her, is improbable. As the Manager of the resort, Mr Gong must have had ultimate had control over when Ms McInnes was rostered to work. I can see no reason why Mr Gong could not have required Ms McInnes to attend work at a time when he was available for the purpose of putting allegations about poor work performance to her and allowing her an opportunity to respond to the allegations.
[67] It is clear that the decision to dismiss Ms McInnes was made prior to any concerns arising from the 9 November 2015 Notice being put to Ms McInnes and prior to Ms McInnes having any opportunity to respond. By the time Mr Gong met with Ms McInnes on 22 December, he had decided to dismiss her. Accordingly, I am satisfied and find that Ms McInnes was not given an opportunity to respond to the reasons for her dismissal.
Was there an unreasonable refusal by Peppers to allow Ms McInnes to have a support person present to assist at any discussions relating to dismissal?
[68] Ms McInnes did not request to have a support person present to assist at discussions relating to dismissal and there was no refusal to allow this. However, there is no evidence that Ms McInnes was given prior notice about any of the meetings in respect of her performance to enable her to arrange a support person even if she had wanted to.
Was Ms McInnes warned about that unsatisfactory performance before the dismissal?
[69] The Act does not mandate any particular number of warnings that must be given to an employee prior to dismissal or the form that a warning must take; a verbal warning may be sufficient to comply. In determining whether an employee has been warned of the risk of dismissal if conduct or capacity to do a job does not improve, the approach is to consider whether what is said to be the warning:
• Identifies the relevant aspect of the employee’s conduct or performance which is of concern to the employer; and
• Makes it clear that the employee’s employment is at risk unless the conduct or performance issue is addressed.
[70] The question of whether a warning has been given in a manner that satisfies these criteria is to be considered in a practical and common-sense way, taking into account the employment context. 67
[71] I accept that there were a number of occasions when Ms McInnes’ unsatisfactory performance was pointed out to her. However, I do not accept that Ms McInnes was warned about the consequences of her unsatisfactory performance or given an opportunity to improve. I do not accept Mr Gong’s evidence that Ms McInnes was given “three and a half month(s) time...to improve her performance” 68. There is no evidence that Ms McInnes was told that her employment was in jeopardy. Mr Gong made much of the fact that Ms McInnes walked out of meetings and refused to take warning letters that he attempted to give her. I do not accept that this should have precluded warnings being given to her. All that was required was for Mr Gong and a witness to sign the warning letter and note on it that Ms McInnes had refused to take it. I also see no reason why Mr Gong could not have mailed the warning letters to Ms McInnes.
[72] Further, I am not satisfied as to the validity of all of the warnings tendered by Mr Gong. There was no credible explanation for some of the discrepancies in the versions of the warnings and I have real doubts that Ms McInnes actually received all of them.
Did the size of the employer’s enterprise and the absence of dedicated human resource management specialists or expertise impact on the procedures followed in effecting the dismissal?
[73] Peppers is a part of the Mantra Group. Mr Gong submits that Ms McInnes’ performance was discussed with human resources in the Mantra Group and that the procedure undertaken to manage Ms McInnes’ performance was “standard Mantra Group Procedure” 69. Mr Gong accepted that he had access to human resource specialists who are employed by the Mantra Group and states that he did in fact seek advice from them.70 If this is the case, the discrepancies in the versions of warnings are surprising.
[74] Equally surprising is the fact that the Manager of a resort could not deal with the simple matter of properly documenting and issuing warnings to a member of housekeeping staff. Even if it is the case that Ms McInnes had a practice of walking out of meetings and refusing to accept written warnings, it is surprising that a strategy to ensure that the warnings were given was not implemented.
Any other matters that the FWC considers relevant
[75] In the present case it is relevant that Ms McInnes had a relatively lengthy period of employment with Peppers albeit that her work history was somewhat chequered. It is also relevant that Mr Gong’s first language is not English and that he had obvious difficulty dealing with Ms McInnes due to language barriers and her propensity to walk out of meetings.
5. CONCLUSION
[76] On balance, I am satisfied that Ms McInnes’ dismissal was unfair. While there was a valid reason for her dismissal, the process of warnings left much to be desired and Ms McInnes was not properly informed about the consequences of her poor performance and that her employment was in jeopardy. It is also the case that the decision to dismiss Ms McInnes was made in the absence of any opportunity being provided to her to improve her work performance.
6. REMEDY
[77] Given that I have found that Ms McInnes’ dismissal was unfair, it is necessary to consider the question of remedy. As required by s.390 of the Act, I am satisfied that Ms McInnes was protected from unfair dismissal and that she has been unfairly dismissed. I am also of the view that Ms McInnes should have a remedy in respect of her unfair dismissal. Ms McInnes did not seek reinstatement. In my view reinstatement is not appropriate. I have reached this conclusion for the following reasons.
[78] It was obvious during the Hearing that there is some animosity between Mr Gong and Ms McInnes and that Mr Gong believes that Ms McInnes’ work performance is poor. Ms McInnes also made it clear that she did not wish to return to employment at Peppers.
[79] I have made the necessary findings that are prerequisite to awarding compensation. In relation to the assessment of compensation, s. 392 of the Act provides as follows:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[80] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket 71. That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey72; Jetstar Airways Pty Ltd v Neeteson-Lemkes73and McCulloch v Calvary Health Care74(McCulloch).
[81] In McCulloch¸ the Full Bench considered, in some detail, the question of how a contingency discount should be applied to the calculation of the remuneration the dismissed person would have received, or would have been likely to receive, if the person had not been dismissed. The Full Bench pointed out in McCulloch that a deduction for contingencies is applied to prospective losses, or losses occasioned after the date of the hearing. The Full Bench also noted that at the time of the hearing any such impact on the earning capacity of the dismissed person between the date of dismissal and hearing will be known, and a finding can be made on the basis of whether the dismissed person’s earning capacity has in fact been affected during the relevant period.
[82] I turn now to the particular criteria I am required to consider in deciding the amount of compensation to be awarded to Ms McInnes for her unfair dismissal.
The effect of the order on the viability of Peppers – s. 392(2)(a)
[83] There is no evidence that any order of compensation will affect the viability of Peppers.
Length of Ms McInnes’ service – s. 392(2)(b)
[84] Ms McInnes was employed at Peppers from approximately July 2011 until November 2015; a period of 4 years and 4 months although during some of that period, Ms McInnes was employed on a casual basis.
Remuneration Ms McInnes would have or would likely have received – s. 392(2)(c)
[85] Ms McInnes estimated that had she not been dismissed she would have remained in employment up until at least the time of Hearing. 75 In her oral evidence Ms McInnes agreed that she would not have remained in employment indefinitely and may have ceased employment at an earlier time given Mr Gong’s dissatisfaction with her performance and that he had made this known to her.76
[86] In all of the circumstances, I do not think that Ms McInnes would have remained in employment for longer than an eight week period beyond the date of her dismissal. In reaching this conclusion I have also had regard to the fact that Mr Gong had decided to dismiss her on 9 November and did not do so until 22 November – in short, Ms McInnes was on borrowed time. I have also had regard to the fact that issues had been raised with Ms McInnes about her work performance and that there was substance to these matters, notwithstanding that they were not raised in a manner that constituted a warning. There is also evidence that Ms McInnes’ hours had been reduced and that she was told that her hours would not be increased until her attendance levels improved.
[87] Ms McInnes submits that for the purposes of calculating compensation her hours of work varied between 15 and 20 hours per week and that her hourly rate of pay was $18.47 Monday to Friday, $23.09 on Saturday and $32.32 on Sunday. 77 Ms McInnes worked one or two Sundays per month. Ms McInnes also said that her termination payment was based on 12.5 hours average per week and that she had not queried that calculation. Mr Gong did not respond to those submissions.
[88] Doing the best that I can on the evidence, I have calculated compensation on the basis that Ms McInnes would have worked on average of 12.5 hours per week amounting to 100 hours for the eight week period in respect of which I have determined to compensate Ms McInnes. I have also assumed that during this period Ms McInnes would have been paid for 8 hours at the Saturday rate and 8 hours at the Sunday rate.
Ms McInnes’ efforts to mitigate loss – s. 392(2)(d)
[89] Ms McInnes states that following dismissal she has attempted to find other work using Seek, Gumtree, a job network and by asking friends about possible positions. 78 Ms McInnes has obtained some casual employment since her dismissal. I accept that Ms McInnes has made reasonable attempts to mitigate the loss of her employment and I do not intend to make any deduction on this basis.
The amount of any remuneration earned since dismissal – s. 392(2)(e)
[90] On termination, Ms McInnes was paid three weeks’ notice at 12.5 hours per week. 79 There was no evidence about what this amount was. That amount is to be deducted from the compensation amount and I have calculated it as best I can in the circumstances. At the time of Hearing Ms McInnes had only been successful in obtaining casual work, which took her a few months to obtain after her dismissal. At the time of Hearing Ms McInnes was receiving approximately one day of work a week.80 Given that Ms McInnes was a part-time employee when employed by Peppers and that the casual employment commenced after the time frame I have used to assess compensation, I do not propose to make any deduction for these earnings.
The amount of any income reasonably likely to be earned during the period between the making of the order for compensation and the actual compensation – s. 392(2)(f)
[91] Ms McInnes had not obtained full time work at the time of the Hearing and given the period of time I have used as the basis for the calculation of compensation does not extend to the point at which the Order for compensation is made, this factor is not relevant in the present case.
Any other matter that the FWC considers relevant – s. 392(2)(g)
[92] I accept that Ms McInnes has had difficulty in finding other employment in the current economic environment and that the loss of her employment has caused her financial difficulty.
Deduction for misconduct
[93] Ms McInnes was not guilty of misconduct and I make no deduction on that basis.
7. CONCLUSION
[94] I conclude as follows:
1. An order for the payment of compensation in the amount below would not affect the viability Peppers’ business.
2. Ms McInnes had a relatively lengthy period of employment and no deduction from compensation should be made on this basis.
3. But for the dismissal, Ms McInnes would likely have earned an amount of $1,994.76
4. I make no deduction for contingencies.
5. I make no deduction for failing to mitigate loss.
6. The amount of notice I estimate was paid to Ms McInnes of $692.60 is to be deducted.
7. I make no deduction for income likely to be earned during the period between the making of my order and the actual compensation.
8. This leaves an amount of compensation of $1,302.16;
9. I make no deduction in respect of misconduct.
10. The amount of compensation is less than the compensation cap calculated in accordance with s. 392(5) and s. 392(6).
[95] In all of the circumstances of this case I consider that it is appropriate that I make an Order for compensation. The Order will issue with this Decision and will require Peppers to pay compensation to Ms McInnes in lieu of reinstatement of a gross amount of $1,302.16 plus superannuation applicable to earnings at that level. The compensation ordered will be subject to the deduction of taxation as required by law. The order will require the payment to be made by no later than 26 September 2016.
DEPUTY PRESIDENT
Appearances:
Ms F. McInnes for the Applicant.
Mr K. Gong for the Respondent.
Hearing details:
Brisbane.
20 June.
2016.
Final written submissions:
Applicant, 15 June 2016.
Respondent, 17 June 2016.
1 Exhibit 1.
2 Exhibit 12.
3 Exhibit 10.
4 Exhibit 11.
5 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.
6 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
7 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
8 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
9 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
10 Exhibit 1.
11 PN87.
12 Exhibit 3.
13 Exhibit 4 and 8.
14 PN119 to PN120.
15 PN151 to PN152; PN246 to PN248.
16 PN388.
17 PN390 to PN391 PN394 to PN400.
18 PN399.
19 Exhibit 8.
20 PN124 to PN148.
21 Exhibit 8.
22 PN153.
23 Exhibit 5.
24 Exhibit 8.
25 PN415.
26 PN125.
27 PN126.
28 PN169 to PN173.
29 PN169 to PN173.
30 PN209 to PN211.
31 PN211.
32 PN301 to PN303.
33 PN309.
34 PN336.
35 PN577.
36 PN574.
37 PN616.
38 PN154; PN175 to PN176.
39 PN336.
40 PN337.
41 Exhibit 2.
42 PN103.
43 Exhibit 2.
44 PN108.
45 PN110.
46 PN217 to PN225.
47 PN226.
48 Exhibit 12.
49 PN673.
50 PN676.
51 PN689.
52 PN312.
53 PN314 to PN316.
54 PN340 to PN341.
55 Exhibit 9.
56 PN503 to PN506.
57 PN474.
58 PN479.
59 PN480.
60 PN481.
61 PN482.
62 PN483.
63 PN484 to PN485.
64 PN493.
65 Exhibit 10.
66 PN313 to PN316.
67 Goodwin v Fastidia Pty Ltd Dec 1023/00 M Print S9280 at [43] considering similar terms in s. 170CG(3)(d) of the former Workplace Relations Act 2006.
68 PN282.
69 PN272.
70 PN438 to PN440.
71 (1998) 88 IR 21.
72 [2013] FWCFB 431.
73 [2014] FWCFB 8683.
74 [2015] FWCFB 2267.
75 PN166.
76 PN177.
77 PN744.
78 PN165.
79 PN160.
80 PN162 to PN164.
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