[2015] FWC 2209

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Helena Jankowski
v
Kryolan Australia Pty Ltd
(U2014/10535)

COMMISSIONER CRIBB

MELBOURNE, 23 APRIL 2015

Application for relief from unfair dismissal.

[1] Ms Helena Jankowski (the Applicant) has made an application for an unfair dismissal remedy in relation to the termination of her employment by Kryolan Australia Pty Ltd (Kryolan, the Respondent, the company).

[2] The application was the subject of conciliation on 20 May 2014 but agreement was not reached. On 20 July 2014, the respondent provided its response to the application (Form F3) and advised of two jurisdictional objections. These were that the business is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code (the Code) and, secondly, that this application and the previous application were frivolous and vexatious. In setting out the reasons why the applications were frivolous and vexatious, it was stated that, in making the first application on 13 June 2014, the Applicant repudiated the interim employment arrangement thereby effectively terminating her own employment at that date.

[3] This statement was not pursued in the Respondent’s Outline of Submissions of 24 October 2014. However, in the Respondent’s Closing Submissions, the statement that, in lodging the first application, the Applicant accepted the alleged repudiation of her contract and therefore effected a termination of the employment relationship, was ventilated at length and came to be described as a jurisdictional objection. The contention that the applications were frivolous and vexatious was not addressed at all in the Respondent’s Closing Submissions.

[4] This decision will deal with the Respondent’s jurisdictional objections in the first instance. If required, the question of whether the dismissal was unfair will then be addressed.

1. Jurisdictional objections

[5] The first issue to be decided is exactly what the Respondent’s jurisdictional objections are which the Commission is required to determine. One jurisdictional objection that has been consistently agitated by the Respondent is that the company has followed the requirements of the Code.

[6] As indicated above, the Respondent’s Closing Submissions did not deal with the frivolous and vexatious objection although it had been stated to be one in the Employer’s Response and in the Respondent’s Outline of Submissions. 1 However, the Respondent in its Closing Submissions, did raise to the level of an objection, the contention regarding the effect of lodgement of the first application. It is clear from the contents of all of the company’s written documentation that the documentation has been prepared with assistance from, probably, a lawyer. Therefore, the Commission is entitled to draw the conclusion from the Respondent’s Closing Submissions that the frivolous and vexatious objection is no longer being pursued by the Respondent. If I am wrong about this, I have considered the submissions of the Respondent on this issue. I have not been persuaded that the application is frivolous or vexatious. The application was heard over two full hearing days with the parties’ closing submissions being provided subsequently in writing. There is no basis, on the material before the Commission, to conclude that the application is frivolous or vexatious in the sense that it lacks substance or is an abuse of process.

[7] As outlined above, the Respondent’s Closing Submissions contained, for the first time, lengthy material regarding a new jurisdictional objection - the effect of the first application on the employment relationship. It is noted that this jurisdictional objection was not articulated until after the end of the hearing - in the Respondent’s Closing Submissions. The Applicant did have an opportunity to respond - in their Closing Submissions in Reply. This objection will therefore be dealt with. However, the Commission takes a dim view of jurisdictional objections which are raised for the first time as such and then are extensively ventilated, after the end of the hearings and witness evidence, in a party’s closing submissions. In this case, this occurred following extensive and professionally prepared submissions having already been submitted by the Respondent.

[8] Therefore, the jurisdictional objections which will be addressed in this decision are the objection concerning the alleged effect of the first application and, secondly, the objection that the summary dismissal was in accordance with the Code.

[9] I will deal with the objections in that order.

(a) First and second applications

(i) Kryolan Australia

[10] It was stated by Kryolan Australia that Ms Jankowski had filed an unfair dismissal application, on 13 June 2014, alleging that she had been constructively dismissed from her employment. 2

[11] The respondent submitted that:

By lodging this application, Ms Jankowski effected a termination of the employment relationship. The Commission was referred to the Full Bench decision in Kylie Bruce v Fingal Glen Pty Ltd 3 as authority for this proposition.4

As Ms Jankowski, herself, brought the employment relationship to an end from 13 June 2014, the Respondent’s subsequent letter of 24 June 2014 cannot be deemed to have affected dismissal as she was not an employee at that point in time. 5

Ms Jankowski discontinued this (first) application on 2 July 2014 which effectively ended the contest of her constructive dismissal claim. The discontinuance of the application did not restore the employment relationship. 6

A second application was subsequently lodged (the current claim before the Commission), which alleges that the applicant was dismissed by letter of 24 June 2014. 7

As Ms Jankowski was no longer an employee at the time of the alleged dismissal (24 June 2014, she could not have been dismissed on that date. Therefore the Commission does not have jurisdiction to deal with the second application. 8

This jurisdictional objection was raised by Kryolan Australia in its Form F3 Employer Response in response to the second application. 9

The Commission should therefore conclude that Ms Jankowski's employment ended on 13 June 2014 and, therefore, she could not make a valid application on 2 July 2014. 10

(ii) Ms Jankowski

[12] In relation to the Respondent’s contention that, by lodging the first application, Ms Jankowski effected the termination of the employment relationship, it was argued that this is not correct. This is because a demotion, in itself, was said to not necessarily mean an ending of the employment relationship. An employee can leave the employment relationship and argue constructive dismissal or the employee may continue in the varied or new contract in the new role and either accept or challenge it through an application such as the Applicant’s first application. 11

[13] It was submitted that the meaning of section 386(2)(c) of the Act is that, if a demotion does involve a significant reduction in duties but the employee remains employed, then it is a dismissal which enlivens the unfair dismissal provisions, despite the continuation of the employment relationship. The Commission was referred to the High Court authority in Visscher v The Honourable President Justice Giudice 12 in support of the proposition that demotion does not necessarily bring the employment relationship to an end. Therefore, it was stated that an employee may continue in the employment relationship in a demoted position but validly make an unfair dismissal claim.13

[14] Further, Ms Jankowski submitted that an unfair dismissal application could be made by a demoted employee to the Commission and that the making of an application can have no immediate effect in relation to an existing employment relationship. It was stated that the Applicant’s first application is not before the Commission as it was discontinued and the current application made. 14 In relation to the cases referred to by the Respondent, it was contended that they do not support the Respondent’s proposition. Rather, the Commission was referred to another authority which was said to provide that an employee may elect to regard the employment at an end but not that an employee must regard it as so.15

[15] Further, support for this contention was drawn from the requirements of the Act which prevent a valid application being made on the day of the dismissal. Therefore, it was argued that Parliament did not intend that an application for unfair dismissal would also act as an instrument of dismissal. 16

[16] The Applicant stated that it was clear that the employment relationship continued after the demotion and after the lodgement of the first application. It was said that the Respondent’s Form F3 indicated that Ms Jankowski was on paid sick leave from 12 June 2014 until her dismissal on 24 June 2014. 17

[17] With respect to the company’s contention that it had raised this jurisdictional issue in its Form F3, it was contended that the Form F3 stated that the Respondent could argue that the Applicant was effectively terminated on 13 June 2014. The Form F3 was said to also state that the date of dismissal was 24 June 2014. It was stated that all of the subsequent evidence was that Ms Jankowski was dismissed by the Respondent on 24 June 2014. 18 It was contended, however, that the Respondent’s Outline of Submissions on jurisdiction (5 October 2014) stated that the dismissal occurred on 24 June 2014. It was argued that these submissions appeared to have been professionally prepared and that they did not contain this jurisdictional objection.19

[18] Further, with respect to the Respondent’s argument that it was unrepresented at the hearing and that the Applicant’s representative had a positive duty to raise this jurisdictional issue, the Applicant contended that:

The company is not truly without representation on the basis of the representations made by Employsure Pty Ltd to Ms Jankowski’s representative, in relation to their client, Kryolan. 20

The Respondent was probably assisted in preparing its case and certainly in relation to its final written submissions.

The criticisms of the Applicant’s representative are totally unjustified. 21

The Respondent ought not be given latitude by the Commission as it might for a truly unassisted small business.

[19] Ultimately, the Applicant submitted that the second application was made within 21 days after the dismissal, even if it occurred on 13 June 2014. On either date, the application was made within time. Therefore, the only argument could be whether the application has the correct termination date. In this regard, it was argued that the Respondent’s submissions are directly contrary to the sworn evidence of Ms Caffyn. They were also said to contradict the Respondent’s Outline of Submissions of 27 October 2014 which states that the Applicant was not notified of her dismissal until 24 June 2014. 22

(iii) Considerations and Conclusions

[20] It was argued by the Respondent that, in making the first application, Ms Jankowski effectively terminated her own employment on that date (13 June 2014). It was common ground that Ms Jankowski discontinued that application. In any event, the only application before the Commission is the application made on 2 July 2014 (second application). This application states that the date of dismissal was 24 June 2014 and the company’s letter of dismissal, of that date, was attached to the application. There is no other application before the Commission, other than this one.

[21] The Respondent further submitted that, as the Applicant had terminated her own employment on 13 June 2014, when she lodged the first application, the company’s letter of dismissal, dated 24 June 2014, cannot be deemed to be a dismissal as the Applicant had already terminated the employment relationship on 13 June 2014, when she lodged the first application. This is in contrast to the Employer’s Response, dated 20 July 2014, which cited 10.00pm on 24 June 2014 as the date of dismissal.

[22] The further difficulty with this contention by the Respondent is that the witness evidence does not support the proposition that the employment relationship was ended by Ms Jankowski, on 13 June 2014 and that therefore she was effectively not dismissed by Ms Caffyn on 24 June 2014. The evidence from Ms Caffyn was that she made the decision to terminate Ms Jankowski on 11 June 2014. However, the next day (12 June 2014), Ms Jankowski provided a medical certificate for 14 days sick leave. Therefore, Ms Jankowski was not dismissed on 12 June 2014 as planned because she was on sick leave. On 24 June 2014, there was a conversation between Ms Caffyn and her husband during which Ms Caffyn told Mr Caffyn that she was waiting until Ms Jankowski returned from sick leave on 3 July 2014 to dismiss her. Further, she said to Mr Caffyn that Ms Jankowski had not yet been sacked. The dismissal was then brought forward from 3 July 2014 to 24 June 2014 when the company first became aware that Ms Jankowski had lodged an unfair dismissal application.

[23] It is apparent from Ms Caffyn’s evidence that the employer still considered the employment relationship to be on foot as at 24 June 2014. Ms Jankowski was away from work on sick leave and Ms Caffyn was waiting for her to return to work so that she could then terminate her employment. As of 24 June 2014, both Ms Caffyn and Ms Jankowski considered there to still be an employment relationship - Ms Caffyn because she hadn’t yet dismissed Ms Jankowski and Ms Jankowski, because she had provided her employer with a medical certificate and was away from work on paid sick leave.

[24] Section 386(2) of the Act sets out the situations when it is not considered that a person has been dismissed. Section 386(2) is as follows:

“(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.”

[25] As can be seen from above, section 386(2)(c) deals with a situation where an employee was demoted in employment. It provides that a person has not been dismissed if the demotion does not involve a significant reduction in salary or duties and the person remains an employee.

[26] The first application, made on 13 June 2014, concerned Ms Jankowski’s demotion. The demotion appears to have involved a significant reduction in duties as Ms Jankowski was demoted from the position of store manager to that of sales assistant (section 386(2)(c)(i)). However, at that point in time, Ms Jankowski was an employee of Kryolan and continued to be an employee until 24 June 2014. Therefore, under s386(2)(c) of the Act, an employee could have been significantly demoted yet not dismissed because of that, if the employee remained employed by the employer.

[27] Both sections 386(2)(c)(i) and (ii) need to be satisfied for the demotion not to have been a dismissal. In this case, although the requirements of section 386(2)(c)(i) have been met, section 386(2)(c)(ii) has not been met as Ms Jankowski remained employed by the company. In the context of section 386(2)(c), in lodging a claim, Ms Jankowski was challenging the termination of her position as a store manager (the demotion) but not the termination of the employment relationship as this continued on after the demotion. The employment relationship was not ended until 24 June 2014 when Ms Caffyn advised Ms Jankowski that she was dismissed.

[28] In lodging the first application, Ms Jankowski was not terminating her employment as the employment relationship continued after the application was lodged. The employment relationship was ended by the company, not by Ms Jankowski, on 24 June 2014. The Act contemplates that there is not a dismissal if, despite demotion, the employee remains employed. Following making the application, Ms Jankowski clearly considered that she was still an employee. She provided her employer with a medical certificate and took no action that would indicate that she had ended the employment relationship e.g. by resigning. Kryolan was also of the same view because, on hearing about the application, Ms Caffyn brought forward the dismissal of the Applicant. Therefore, in making the first application, Ms Jankowski did not terminate her employment and the employment relationship continued until 24 June 2014 when the company dismissed Ms Jankowski. To propose otherwise flies in the face of all of the witness evidence, particularly the evidence given on behalf of the company by Ms Caffyn.

[29] Accordingly, the Respondent’s jurisdictional objection that, in making the first application, Ms Jankowski effectively terminated her own employment, thereby rendering the dismissal on 24 June 2014 superfluous as the employment relationship had already been terminated, is dismissed.

(b) Small Business Fair Dismissal Code

“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[30] The company has submitted that it is a small business employer; that the dismissal of Ms Jankowski was a summary dismissal and that the summary dismissal was in accordance with the Code.

[31] In its Outline of Submissions, the Respondent argued that it was a small business at the time Ms Jankowski was dismissed and provided information to support this contention. It was conceded by the Applicant that the company was a small business. 23 Therefore, the Commission will proceed on the basis that the company is a small business employer.

[32] However, it was argued, on behalf of Ms Jankowski, that the termination could not have been a summary dismissal as the conduct complained about by the Respondent did not constitute serious misconduct. It was stated that, contrary to the Respondent’s contentions, there was no agreement between the parties that the dismissal was a summary dismissal. 24 Therefore, it was submitted that the dismissal was not in accordance with the Code.

[33] It emerged during the hearing, that Kryolan did not pay Ms Jankowski any notice. This is because the offer of four weeks’ pay was contingent on Ms Jankowski withdrawing her unfair dismissal claim.

[34] The first question to be determined then, is whether there were reasonable grounds for the employer to believe that Ms Jankowski had engaged in conduct sufficiently serious to justify immediate dismissal (serious misconduct). This effectively requires there to have been reasonable grounds to believe that serious misconduct had been committed. 25

Was the Code complied with?

(a) Summary dismissal

Kryolan Australia

[35] Kryolan Australia submitted that there were reasonable grounds on which the employer believed that Ms Jankowski’s conduct was sufficiently serious to justify immediate dismissal and that the company had therefore complied with the Code. 26 It was argued that Ms Jankowski’s conduct was serious misconduct on the basis that Ms Caffyn believed that Kristy’s health and safety, and that of her own, was under threat as a result of Ms Jankowski’s conduct.27

[36] In terms of her concerns regarding Kristy, it was stated that Kristy had tendered her resignation because she was said to have been “fearful of her fate” when Ms Jankowski returned to work. Ms Caffyn also stated that she was aware that Kristy was seeking medical help. 28 With respect to herself, Ms Caffyn explained that her own health was seriously in question (she was also seeing a doctor) and that she felt intimidated by Ms Jankowski. She said that she was not a make-up person but an engineer (logical). Ms Caffyn described Ms Jankowski as very defensive, very aggressive and as capable of being very belittling.29

[37] It was also Ms Caffyn’s view that:

“.... so I just thought it’s best, in the best interest of everyone, but if the relationship didn’t work let’s just put it to the end and I also had the responsibility to Kristy that I believed her health and safety was under threat. I also believed my health and safety was under threat. I truly also believe that the applicant’s health and safety were under threat and, in the relationship, they just didn’t work and that was - and I - to me, I could not face the applicant anymore. I truly could not face her any more. Even another meeting could just - could just, you know - but I also absolutely admire all the applicant’s experience...” 30

[38] In the Respondent’s Outline of Submissions, it was further argued that Ms Jankowski’s misconduct included:

Being abrupt and rude to customers resulting in many serious customer complaints. Ms Jankowski’s erratic behaviour was said to be seriously threatening the store’s viability and the company’s reputation. 31

Bullying of junior employees and multiple complaints from many past and current staff members about the Applicant’s rude behaviour. 32

The continued bullying of Kristy despite the final warning on 23 May 2014. Kristy has not fully recovered from the bullying five months after Ms Jankowski’s dismissal. 33

Bullying of Ms Caffyn in the form of aggression (shouting and screaming) when given performance feedback. 34

Deliberately undermining and embarrassing Ms Caffyn in a large meeting on 21 May 2014. 35

The decision to terminate the Applicant without a face-to-face meeting was partly due to Ms Caffyn’s fear of the Applicant. 36

[39] It was Ms Caffyn’s evidence that she had spoken to Ms Jankowski about her behaviour towards Kristy during a telephone call on 20 May 2014 and during the meetings on 21 May and 23 May 2014. 37 Ms Caffyn did concede that she did not put to Ms Jankowski what Kristy had said to her on 24 May 2014.38 An e-mail from Ms Caffyn to Ms Jankowski, on 11 June 2014, was referred to by Ms Caffyn. The e-mail told Ms Jankowski that she “MUST STOP being rude and abrupt to Kristy”.39 Reference was also made to Ms Jankowski’s “hostile treatment of Kristy”.40 Later in her evidence, Ms Caffyn seemed to say that she did not talk about it to Ms Jankowski because she did not think that there was a need to put it to her in terms of Kristy.41

Ms Jankowski

[40] On behalf of the Applicant, it was submitted that the Respondent’s basis for arguing that Ms Jankowski’s conduct was serious misconduct was particularly weak. This was because:

Ms Caffyn’s beliefs were subjective and there was no evidence on which the Commission could accept that the beliefs were reasonable. 42

Conduct that resulted in a warning cannot later be used to justify summary dismissal without something else. In the Respondent’s Closing Submissions, it was admitted that there was nothing new in the last month of employment. 43 If the conduct was serious misconduct, the delay between becoming aware of the conduct and taking the action means that the employer has condoned the conduct and cannot rely on it for summary dismissal.44

The Respondent has failed to state what the alleged conduct actually involved. 45 It has identified two factors as serious misconduct - that Kristy’s and Ms Caffyn’s health and safety was under threat.46

There is no evidence to demonstrate the alleged bullying of Kristy by Ms Jankowski. 47

There is no evidence, except for subjective assertions, of any bullying or threat to Ms Caffyn’s health and safety. A flare up at a staff meeting was said to not amount to bullying or a health and safety threat. No other credible examples of misbehaviour towards Ms Caffyn have been provided. 48

Most of the Form F3 and the Small Business Checklist refers to alleged performance and personal competence deficiencies. The complaints regarding bullying were said to lack any detail. 49

Considerations and Conclusions

[41] Kryolan Australia has submitted that Ms Jankowski was summarily dismissed because there were reasonable grounds for the employer to believe that the Applicant’s conduct was sufficiently serious to warrant immediate dismissal. The grounds for forming this view were Ms Jankowski’s conduct towards both Ms Caffyn and Kristy. The conduct was said to have been such that Ms Caffyn held concerns for both Kristy’s and her own health and safety. Ms Jankowski’s behaviour was described as including aggressive outbursts (referred to in the final warning); being defensive and aggressive (Ms Jankowski’s e-mail of 11 June 2014); between April 2014 and May 2014, observations that Kristy went from bubbly to quiet and her observations of Kristy on 20 May 2014 that she didn’t seem her full self; 50 a customer complaint about Ms Jankowski’s rudeness on 20 May 2014,51 Ms Jankowski’s aggressive behaviour during the store meeting on 21 May 2014 and her aggressive and offensive behaviour at the subsequent meeting with Ms Caffyn on 21 May 2014.52

[42] I have carefully considered all of the material before me. Apart from the statements made by Ms Caffyn during her evidence, there is no specific corroborated evidence to support the alleged serious misconduct by Ms Jankowski. There was no complaint made by any staff member in relation to Ms Jankowski, no investigation was undertaken regarding the alleged bullying by Ms Jankowski and no staff members from the Little Collins Street store were called to give evidence by the Respondent. There is, therefore, no evidence from Kristy or Ms Bennell about Ms Jankowski’s alleged bullying of them and there are no specific details before the Commission of any incidences of the bullying of Kristy by Ms Jankowski.

[43] On the other hand, evidence was given by Ms Jankowski in relation to specific interactions with Kristy around 5 May 2014, on 6 June 2014 and regarding giving Kristy feedback about being slow at administrative work and physical stock takes and for spending too much time doing make up for her friends. Further, Ms Jankowski was of the view that she and Kristy had sorted things out prior to the meeting on 23 May 2014. Ms Jankowski denied bullying either Kristy or Ms Caffyn.

[44] In regard to the alleged bullying of Ms Caffyn by Ms Jankowski, Ms Caffyn referred to instances of misconduct by Ms Jankowski eg. Ms Jankowski’s behaviour at the store meeting on 21 May 2014 and at the subsequent meeting later that night, Ms Jankowski’s e-mail of 11 June 2014 and the verbal warning given on 28 February 2014 (regarding Ms Jankowski’s behaviour towards Alanna on 24 February 2014).

[45] Ms Jankowski acknowledged, during her evidence, that she became frustrated and got upset at the store meeting on 21 May 2014. She also stated that, at the meeting following, she was very upset and was crying. In regard to the meeting with Ms Caffyn on 28 February 2014 she said that she had not been given a first verbal warning in relation to Alanna. Rather, she felt that it had been a positive conversation about Ms Caffyn’s and her relationship and moving forward as she found Ms Caffyn to be very aggressive at times. Further, Ms Jankowski considered the e-mails she received from Ms Caffyn to be aggressive e.g. 4 April 2014.

[46] It is apparent from the evidence that the relationship between Ms Caffyn and Ms Jankowski was a far from perfect employer/employee relationship. Both parties have claimed that the other is aggressive and difficult (Ms Caffyn) or aggressive and arrogant (Ms Jankowski). Ms Caffyn’s description of their working relationship on 28 February 2014 was that “ ... sometimes [both of us] can get a bit overheated....If we see each other getting a bit headlocked, bang, just we try to step away....”. 53 Both Ms Caffyn and Ms Jankowski have denied the other’s allegations in relation to their conduct.

[47] Taking all of this into account, it is abundantly clear from Ms Caffyn’s evidence that she believed that Ms Jankowski’s conduct was sufficiently serious to justify immediate dismissal. The question then is whether there were reasonable grounds for Ms Caffyn holding this belief.

[48] On the basis of the material before me, I am unable to find that Ms Caffyn had reasonable grounds for her beliefs in relation to Ms Jankowski’s conduct. Firstly, this is because the Respondent has not provided sufficient detailed and first hand evidence to substantiate the grounds of her belief that Ms Jankowski’s conduct was sufficiently serious to justify immediate dismissal. This is particularly so in relation to Ms Jankowski’s alleged bullying of Kristy, Ms Bennell or Alanna. Given the lack of evidence, the Commission is unable to make findings that this bullying conduct occurred. Therefore, the Commission is unable to find that these allegations provided reasonable grounds for Ms Caffyn’s beliefs in relation to Ms Jankowski’s conduct.

[49] With respect to the alleged bullying of Ms Caffyn by Ms Jankowski, I do not find that Ms Jankowski’s email of 11 June 2014 was aggressive. However, Ms Caffyn’s emails to Ms Jankowski on 3 March and 4 April could well be described as aggressive. In terms of Ms Jankowski’s conduct during the staff meeting on 21 May 2014, I find that it was highly inappropriate and demeaning of Ms Caffyn. However, it is my view that it does not rise to the level of serious misconduct, as defined in the Code. The other fact that needs to be taken into account in deciding whether there were reasonable grounds for Ms Caffyn’s beliefs, is the nature of the relationship between Ms Caffyn and Ms Jankowski. I accept Ms Jankowski’s evidence that Ms Caffyn was aggressive towards her at times. It would seem that the relationship between Ms Caffyn and Ms Jankowski was a difficult one. This needs to be taken into account in deciding whether Ms Caffyn had reasonable grounds for her beliefs regarding Ms Jankowski’s conduct.

[50] Therefore, for all of these reasons, I find that Ms Caffyn did not have reasonable grounds to believe that Ms Jankowski’s conduct was sufficiently serious to justify immediate dismissal. Accordingly, I find that Ms Jankowski’s dismissal did not comply with the Code in relation to summary dismissal. The Respondent’s second jurisdictional objection is dismissed.

2. Other dismissal

[51] As Ms Jankowski’s conduct was not serious misconduct justifying immediate dismissal, the Commission is required, under the Code, to consider “Other Dismissal”. In relation to “Other Dismissal”, the Code requires that the employer give a reason why the employee is at risk of being dismissed. The warning must be verbal or, preferably, in writing, and must state that the employee risks being dismissed if there is no improvement. The employer must also give the employee a reasonable chance to rectify the problem including additional training.

[52] I will deal with each of the elements in turn.

Was Ms Jankowski given a valid reason why she was at risk of being dismissed and that, if there was no improvement, she risked being dismissed?

[53] It was submitted by the company that Ms Jankowski had been counselled on her poor performance as store manager and her customer service since late 2012. 54 In July 2013, the company stated that there were a number of high profile customer complaints.55 The company also indicated that, following an aggressive outburst towards Ms Caffyn, on 24 February 2014, Ms Caffyn and Ms Jankowski met on 28 February 2014. During this meeting, it was Ms Caffyn’s evidence that she had counselled Ms Jankowski about her aggressive behaviour. Ms Jankowski’s recollection of this meeting was different. It was her view that, during the meeting, they had simply discussed their relationship and that it was a positive meeting in that regard. Ms Caffyn sent the Applicant an email following the meeting, on 3 March 2014. The email stated that Ms Jankowski’s behaviour, when performance issues were raised with her, was unnecessary and unacceptable. Ms Caffyn stated that she would no longer tolerate this behaviour from Ms Jankowski.56

[54] On 4 April 2014, Ms Jankowski was given a written warning in relation to her poor performance as store manager. The warning stated that Ms Caffyn would not tolerate another three months of non management performance. 57

[55] Following further customer complaints and report of her conduct towards Kristy, Ms Caffyn spoke on the phone to Ms Jankowski about her unacceptable conduct. It was Ms Jankowski’s evidence that Ms Caffyn had been pretty rude to her during that conversation. Consequently, she did not remember its contents.

[56] Ms Jankowski was given a final employment warning on 23 May 2014. The warning stated that Ms Jankowski’s abruptness and aggressive behaviour during the staff meeting on 21 May 2014 was not acceptable and that, if there was another aggressive outburst, her employment would be terminated. 58

[57] On 11 June 2014, Ms Caffyn emailed Ms Jankowski and told her that she must stop being rude and abrupt to Kristy and that, if the bullying behaviour persisted, her employment would be terminated. 59 The day before (10 June 2014), Ms Caffyn had emailed Ms Jankowski and gave her a final warning in relation to not taking money out of the till/her credit card without prior approval.60

[58] The Code requires that the warnings must state that the employee risks being dismissed if there is no improvement. When assessed against this criteria, there are two warnings where Ms Jankowski was warned that she would be dismissed if there was no improvement. These are the warning of 23 May 2014 in relation to Ms Jankowski’s behaviour during the meeting on 21 May 2014 and the email of 11 June 2014 in regard to being rude and abrupt to Kristy.

[59] With respect to the reasons why an employee is at risk of being dismissed, the Code requires that the reason be a valid reason. A finding of fact regarding Ms Jankowski’s conduct, during the meeting on 21 May 2014, has already been made at paragraph [49] above. Therefore, I find that there was a valid reason for the warning of 23 May 2014 in relation to Ms Jankowski’s behaviour during the 21 May 2014 store meeting.

[60] In terms of the warning regarding Kristy on 11 June 2014, as set out in paragraphs [39] and [48] above, the Commission was unable to make a finding that the conduct occurred as alleged, due to a lack of evidence. Therefore, I am therefore unable to find that the reason for this warning was a valid reason.

Was Ms Jankowski given an opportunity to respond to the warning and a reasonable chance to rectify the problem with possible additional training/ensuring that Ms Jankowski knows the employer’s job expectations?

[61] Ms Jankowski was given the final employment warning at a meeting on 23 May 2014. Although what happened during the meeting is disputed by Ms Jankowski, I am satisfied that Ms Jankowski was given an opportunity to respond to the warning.

[62] I am also satisfied that Ms Jankowski was given a reasonable chance to rectify the problem. The disciplinary actions taken by the company included Ms Jankowski taking 10 days leave and then working three days/week (using annual leave for the other two days) for the next five weeks to allow her to sort out her family issues and emotional state. Further, Ms Jankowski was demoted from the store manager role with the company to attempt to find her a more suitable role within the next two months. The company also made clear its expectations of Ms Jankowski, during the next six months, in relation to the number of mistakes she made. Also, Ms Jankowski was to control her excessive competitiveness and that there were to be no customer complaints about her demeanour or abruptness. Therefore, I also find that the company made clear its expectations of Ms Jankowski in the future.

Procedural matters

[63] The Code further provides that an employee can have another person present in discussions where dismissal is possible. During the second meeting, on 21 May 2015, Ms Huang sat in at the request of Ms Jankowski. During the meeting on 23 May 2014, two other employees shared this support role for Ms Jankowski - Ms Deere and Ms Jemson.

[64] Therefore, I am satisfied that this part of the Code was complied with.

[65] The Code implies that, following being warned, if an employee then does not improve, they can be dismissed. Therefore, the question is whether there was another “aggressive outburst” from Ms Jankowski following the final employment warning of 23 May 2014. It was Ms Caffyn’s evidence that she made the decision to dismiss Ms Jankowski on 11 June 2014. 61 Mr Caffyn confirms that this was the date the decision was made and stated that nothing happened after that which led to the dismissal.62

[66] From the evidence of Mr and Mrs Caffyn, it appears that the intention was to dismiss Ms Jankowski on 3 July 2014 at the warehouse. On being advised by the Commission of Ms Jankowski’s unfair dismissal application, on 24 June 2014, they discussed it at home that night and decided to dismiss Ms Jankowski. 63

[67] Ms Caffyn stated that what had happened since 23 May 2014, was that Ms Jankowski had sent her an email, on 11 June 2014, which was quite defensive and aggressive. It was said to have been a sign that Ms Jankowski was still not accepting feedback. 64

[68] The email from Ms Jankowski, which Ms Caffyn found to be aggressive and defensive, was in response to the final warning of 10 June 2014, regarding the till incident. Ms Jankowski’s email explained the situation in relation to the till incident from her perspective and stated that it was unfair and insulting to imply that she had stolen money from the till. The email had then talked about her concerns in relation to Kristy. It is my view that the contents of the email were measured and calm. I am unable to detect defensiveness or aggression in the email.

[69] Therefore, I find that Ms Jankowski’s email was not a further “aggressive outburst” by Ms Jankowski. There is no other alleged further misbehaviour by Ms Jankowski after 23 May 2014.

[70] As there was no further misbehaviour by Ms Jankowski which would indicate that there had been no improvement since the warning on 23 May 2014, I find that the company has not complied with the Code.

[71] Therefore, it is necessary to consider whether Ms Jankowski’s dismissal was unfair, on the basis of the criteria in section 387 of the Act.

Was the dismissal harsh, unjust or unreasonable?

[72] Section 387 is as follows:

“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.”

I will deal with each of the factors in turn.

1. Section 387(a) - valid reason

[73] When the witness evidence, the Respondent’s written submissions and the letter of termination are taken into account, it is not particularly clear as to what the Respondent’s reasons were for dismissing Ms Jankowski. In summary, the termination letter stated that the reasons were complaints by more staff about Ms Jankowski’s rolling of her eyes during a staff meeting on 21 May 2014, Ms Bennell’s and Kristy’s complaints, the incident relating to taking cash from the till and the aggression and arrogance towards Ms Caffyn. In addition, further clarifications of the reasons for the dismissal were provided in the Respondent’s Outline of Submissions. These appeared to raise some new reasons which were not contained in the letter of termination nor was there clear evidence given about them during the hearing. In addition, the clarifications included certain issues which had already been brought to the Ms Jankowski’s attention and for which a warning had been given. Adding to the melange of reasons is that the focus of the witness evidence appears to have been about Ms Jankowski bullying Kristy and the till incident.

[74] In order to put some structure into the confusion created by the Respondent regarding the reasons for Ms Jankowski’s dismissal, I will first deal with the reasons contained in the letter of termination. The clarifications set out in the Respondent’s Outline of Submissions will then be considered, followed by any other residual issues.

(i) Reasons for dismissal -Letter of Termination

[75] The reasons for Ms Jankowski’s dismissal were set out in the letter of termination dated 24 June 2014. 65 These were:

On 24 May 2014, more staff came forward about Ms Jankowski’s conduct at the meeting on 21 May 2014 (rolled her eyes throughout the meeting).

Also on 24 May 2014, Ms Bennell raised the issue of Ms Jankowski’s behaviour towards her over the past 18 months (she was going to resign last year as a result).

On 24 May 2014, also, Kristy spoke openly about Ms Jankowski’s behaviour towards her. She was going to resign on 24 May 2014 as she was fearful of the ongoing work relationship with Ms Jankowski.

On 4 and 5 June 2014, Ms Jankowski took cash from the till without Ms Deere’s approval, thereby showing great disrespect for Ms Deere’s management.

On 6 June 2014, Ms Jankowski was again very rude to Kristy in the store, which was observed by other staff members. On 10 June 2014, Kristy requested management that she not be rostered to work with Ms Jankowski in the future. Ms Jankowski was also advised that she was to work in the warehouse, on 13 June 2014, instead of the Little Collins Street store, due to this request.

Ms Jankowski’s aggression and arrogance towards Ms Caffyn (yelling and screaming) whenever she was given negative feedback about her performance. Ms Jankowski also refused and undermined management instructions. The aggression culminated in yelling and screaming in a large store team meeting which was designed to deliberately undermine, embarrass and humiliate Ms Caffyn. 66

I will deal with each of these reasons in turn.

(a) Complaints from other staff regarding meeting on 21 May 2014 and from Kristy and Ms Bennell

[76] It was alleged by Ms Caffyn that, on 24 May 2014, more staff came forward in relation to Ms Jankowski’s conduct at the meeting and that Ms Bennell and Kristy also spoke to her about Ms Jankowski’s behaviour towards them. Ms Caffyn gave evidence that she knew that Ms Jankowski had rolled her eyes to a couple of people. However, it became apparent to Ms Caffyn that more and more people had the same concern. 67

[77] In relation to Ms Bennell speaking to her about Ms Jankowski’s behaviour towards her over the past 18 months, Ms Caffyn indicated that Ms Bennell had spoken to her about it. She said that Ms Bennell’s complaint about Ms Jankowski was not put to the applicant. 68

[78] With respect to Kristy, it was stated by Ms Caffyn that Kristy had only spoken to Ms Caffyn but that Ms Jankowski had confirmed her mistreatment of Kristy during the second meeting on 21 May 2014. 69 Ms Caffyn indicated that she had not herself observed Ms Jankowski’s behaviour towards Kristy.70 However, she explained that, during the second meeting on 21 May 2014, Ms Jankowski had confirmed her dislike of Kristy and her perception that Ms Caffyn was training Kristy to take over her job after Kristy had updated the story daily sales communication book. It was stated that Ms Jankowski had expressed insecurity in relation to this and that her dislike of Kristy was due to the threat she felt from Kristy’s Special Effects knowledge. This was said to have threatened Ms Jankowski’s status as the Special Effects product expert in the company.71

[79] Ms Huang, who was also at the second meeting on 21 May 2014, confirmed Ms Caffyn’s account of what happened. She recalled that Ms Jankowski had indicated that her job felt insecure because Kristy gave Ms Caffyn the forms. 72

[80] It was Ms Jankowski’s evidence that there was discussion about Kristy in the second meeting and that she was surprised when Ms Caffyn told her that she (Ms Jankowski) had a problem with Kristy. Ms Jankowski explained that she was flabbergasted when Ms Caffyn said that she could tell by the tone of her voice that Ms Jankowski had a problem with Kristy. She was not given any details of what she had done to Kristy. It was stated that she had been a bit annoyed with Kristy about her updating the store daily sales communication book. This was because it was a doubling up on procedures and it felt like more paperwork. However, it was recalled that she had said to Kristy that it was a good thing that she had done it. 73

[81] In relation to the allegation that she had rolled her eyes, Ms Jankowski gave evidence that she did not recall rolling her eyes. 74

[82] With respect to Ms Bennell, it was recalled by Ms Jankowski that she had had to give Ms Bennell a performance warning, in 2013, in relation to not providing support for the staff in the store whilst Ms Jankowski was running the Halloween workshop. 75 It was Ms Jankowski’s evidence that she had found Ms Bennell difficult to manage and that she had received complaints about her manner in the store with staff.76

Considerations and Conclusions

[83] The first reason given by the company is that more staff came forward to Ms Caffyn to complain about Ms Jankowski’s conduct (rolling her eyes) during the store meeting on 21 May 2014. There was no evidence provided by the company as to who made these complaints. There was no evidence given by any of these staff in relation to having complained to Ms Caffyn on 24 May 2014. Therefore, I am unable to find that this occurred. Accordingly, this reason will not be taken into account when determining whether there was a valid reason for Ms Jankowski’s dismissal.

[84] With respect to the second reason for dismissal, there is no evidence before the Commission which provides any detail about Ms Bennell’s complaint. Ms Bennell was not called to give evidence and Ms Caffyn’s evidence did not go to the specifics of Ms Bennell’s complaint. Given the absence of evidence about this issue, it is not possible to make a finding of fact that Ms Jankowski engaged in such conduct. Therefore, it is not possible to include this reason in consideration of whether there was a valid reason for the dismissal.

[85] The third reason related to the alleged bullying of Kristy by Ms Jankowski. Again, there was no evidence provided of specific instances of bullying by either Ms Caffyn or Kristy. It was Ms Caffyn’s evidence that she had not witnessed any inappropriate behaviour by Ms Jankowski towards Kristy. The Commission was provided with statements and assertions by Ms Caffyn but no details and no direct evidence of the alleged bullying from Kristy. Therefore, given the lack of evidence to support this reason for dismissal, together with Ms Jankowski’s denial and her evidence about her performance concerns about Kristy, I am unable to make a finding that the alleged bullying occurred. Accordingly, account is unable to be taken of the third reason for Ms Jankowski’s dismissal.

(b) Took cash from the till on 4 and 5 June 2014

[86] This issue concerned the allegation that Ms Jankowski showed great disrespect to Ms Deere’s management by taking cash out of the till without Ms Deere’s prior approval. It was stated by Ms Caffyn that Ms Jankowski was lying when she said that Ms Deere had given her the money. This was because she knew that Ms Jankowski was lying as Ms Deere would not have alerted her if that had not been the case. 77

[87] The matter was discussed between Ms Caffyn and Ms Jankowski, via email, on 10 and 11 June 2014. In Ms Caffyn’s email on 10 June 2014, she advised Ms Jankowski that she was not to take money out of the till without Ms Deere’s prior approval. 78 The email said that her having taken the cash out was inappropriate and disrespectful.79

[88] It was Ms Caffyn’s evidence that Ms Jankowski had not suggested to Ms Deere that the company buy lunch for the staff and that she had asked to be allowed to take $20 out of the till. She said that it was company policy that anything over $10 needed to be approved by herself. 80

[89] Ms Jankowski gave evidence that she had advised Ms Deere that, as Liz (the sales representative) was helping serve customers and the staff were not going to get a lunch break, the usual practice was for the company to provide lunch in these circumstances. She had explained to Ms Deere that the usual practice was to provide $20. She believed that Ms Deere had given Liz the money as it had not been her. Ms Jankowski’s view was that it was done with Ms Deere’s approval. 81

Considerations and Conclusions

[90] There was a lot of evidence given about this issue. However, of the two people directly involved, only one (Ms Jankowski) gave evidence about what had happened. Ms Deere did not give evidence. Ms Caffyn’s evidence and submissions on this matter are acknowledged and respected. However, Ms Caffyn was not present in the store at the relevant times. Ms Caffyn’s knowledge of what happened was the result of her discussions with Ms Deere.

[91] It was Ms Jankowski’s evidence that she did not physically take the money out of the till. Rather, she had suggested to Ms Deere that it was the usual store practice. As there is no direct evidence which contradicts Ms Jankowski’s version of events, the Commission accepts the only direct evidence before it, as there is no reason, apparent to the Commission, to not accept Ms Jankowski’s evidence.

[92] Therefore, on the basis of the material before me, I am unable to make a finding that Ms Jankowski took out cash from the till without Ms Deere’s prior approval, on 4 and 5 June 2014. This reason for Ms Jankowski’s dismissal is unable to be taken into account.

[93] In Ms Caffyn’s email to Ms Jankowski, dated 10 June 2014, she advised that it had been brought to her attention that Ms Jankowski had been very rude to Kristy on Friday 6 June 2014. 82 In her email on 11 June 2014 to Ms Jankowski, Ms Caffyn told her that she must stop being rude and abrupt to Kristy.83 Ms Caffyn conceded that details of her behaviour towards Kristy had not been given to Ms Jankowski. Rather, it had just been described as rudeness.84

[94] In Ms Jankowski’s response to Ms Caffyn’s email of 10 June 2014, she raised two issues in relation to Kristy. These concerned her view that Kristy did not seem to retain all of the information that she had passed onto her (the need to check refills) and that she had asked Kristy three times to email her request for an extra class. 85 Ms Caffyn stated that she had investigated the issues relating to Kristy that Ms Jankowski had raised in the period prior to 11 June 2014.86 In relation to the Applicant’s claim that she had asked Kristy three times to email her request for an extra class, Ms Caffyn stated that she did not speak to Ms Deere about anything that Ms Jankowski had raised about Kristy. She said that she had not specifically asked Ms Deere about this issue. This was because, to her knowledge, it was not true. It was recalled that she had also not spoken to Kristy about the need to check refills as she knew that, based on her previous investigations, Ms Jankowski was making up stories.87

Considerations and Conclusions

[95] The fourth reason given for Ms Jankowski’s dismissal concerned an incident on 6 June 2014 when Ms Jankowski was observed to have been very rude to Kristy. No details of what Ms Jankowski had said or done in relation to Kristy were provided to the Applicant. Similarly, there is no detailed evidence before the Commission as to Ms Jankowski’s conduct. Neither of the two staff members who saw this happen, nor Kristy, have given evidence about what happened.

[96] Therefore, the Commission is again in a position where it is not possible to make a finding of fact that Ms Jankowski was very rude to Kristy on 6 June 2014. The Commission is, as a result, unable to take this reason into consideration.

(d) Ms Jankowski’s arrogance and aggression towards Ms Caffyn

[97] The final reason for Ms Jankowski’s dismissal, as set out in the letter of 24 June 2014, was her arrogance and aggression towards Ms Caffyn. It was stated by Ms Caffyn that, during her employment, Ms Jankowski had been very rude to her which had been discussed with Ms Jankowski. This included the first email on 3 March 2014, Ms Jankowski screaming and yelling at her on the phone and her general behaviour towards her. Ms Caffyn initially stated that Ms Jankowski’s email on 11 June 2014 to her was aggressive behaviour. This changed to being described as an aggressive and defensive response to feedback to her. It was also stated that Ms Jankowski became very defensive and that she was not listening to feedback. 88 In addition, Ms Caffyn recalled that, during a telephone call on 24 February 2014, Ms Jankowski had gone crazy on the phone and had started yelling and screaming at her in front of customers.89

[98] During Ms Jankowski’s evidence, she made a number of references to how she found Ms Caffyn’s behaviour towards her. For example, during the meeting with Ms Caffyn on 28 February 2014, she said that she had asked Ms Caffyn to recognise that she was being aggressive towards her and that she could only take so much of Ms Caffyn screaming at her. 90 Ms Jankowski did acknowledge that she was upset at the staff meeting on 21 May 2014.91 She also indicated that, at the second meeting that night, she was crying and really upset. She recalled that Ms Caffyn had been screaming at her. If Ms Caffyn had seen her eyeballs “on fire”, it was because they were red from crying.92

Considerations and Conclusions

[99] This reason for dismissal contained a number of elements. One of these concerned Ms Jankowski’s behaviour in the store meeting on 21 May 2014 which was said to have been to deliberately embarrass, humiliate and undermine Ms Caffyn. This was discussed in paragraph [49]above and does not require repeating here. However, it should be noted that the Commission has found that Ms Jankowski’s conduct during the meeting on 21 May 2014 was aggressive and demeaning of Ms Caffyn and therefore highly inappropriate and unacceptable. However, the conduct did not rise to the level of serious misconduct justifying immediate dismissal.

[100] In terms of the allegation that Ms Jankowski was aggressive and arrogant towards Ms Caffyn when given negative feedback, it would appear from the evidence that both Ms Caffyn and Ms Jankowski, to a lesser extent, behaved inappropriately towards each other on occasion. Ms Caffyn alluded to this when she said in her evidence in paragraph [46] above that sometimes, they both could “get overheated”.

[101] As Ms Caffyn and Ms Jankowski were aggressive towards each other at times, it is not possible to find that Ms Jankowski was the sole protagonist in terms of any allegations of aggression or arrogance by Ms Jankowski towards Ms Caffyn.

(ii) Clarification of reasons - Respondent’s Outline of Submissions

[102] In their Outline of Submissions, the Respondent provided further clarification of Ms Jankowski’s multiple misconduct and serious performance failings. 93 The further reasons were that:

Ms Jankowski was abrupt and rude and behaved erratically towards customers, resulting in many serious customer complaints.

Ms Jankowski bullied junior employees and there were multiple complaints from many past and current staff members about her rude behaviour.

Ms Jankowski bullied her manager, Ms Caffyn, by acting aggressively towards her (shouting and screaming) when provided with performance feedback. Ms Caffyn was at the point of feeling physically ill at the mere thought of needing to speak or deal with Ms Jankowski and was in fear of her.

Refusing reasonable instructions including taking cash out of the till and using Ms Caffyn’s credit card without prior approval. As well, many cash store purchases had been made without approval.

Performance issues relating to Ms Jankowski’s management of the store. These included Ms Jankowski not being able to perform basic store management functions e.g. staff rosters and timesheets.

Ms Jankowski had failed to maintain the store customer database and had lied to Ms Caffyn by saying that she had been maintaining it.

Ms Jankowski made serious mistakes in charging customers and by sending out products without charging.

Store sales performance declined sharply during the time Ms Jankowski was store manager due to her rudeness to customers and creating an unhappy work environment.

Ms Jankowski displayed a general lack of organisational and people management skills. She competed with staff whom she saw as a threat to her position as a manager or as a product expert.

[103] It was argued by the Applicant that there was no or inadequate evidence for the Commission to make findings on any of these matters. 94

[104] However, it is necessary to deal these further reasons. They will be dealt with in turn.

(a) Serious customer complaints

[105] With respect to the first further reason (many serious customer complaints about Ms Jankowski), there was no additional information provided in the Outline of Submissions - simply this assertion. This further reason appears to be a new reason for the dismissal in that it is not referred to as one of the reasons in the letter of termination. There was no detail provided about the complaints eg, how many, when, who made the complaint, what was it about etc. Further, there appears to be no definitive evidence about particular customer complaints except for an email from the Head of Makeup in July 2013 and an assertion by Ms Caffyn that a customer complained on 20 May 2014. 95 Therefore, I am unable to make a finding in relation to this particular further reason.

(b) Bullying of junior colleagues

[106] This further reason covered the bullying of junior employees and multiple complaints from many past and current members of staff. Kristy was specifically mentioned in relation to the bullying incident. No other details were provided. The letter of termination referred to Kristy having a conversation with Ms Caffyn about Ms Jankowski’s behaviour towards her. The letter also made reference to Ms Jankowski having been very rude again to Kristy on 6 June 2014 with the result that Ms Jankowski was to be transferred to work in the warehouse. As the issues relating to Kristy formed one of the reasons for Ms Jankowski’s dismissal set out in the letter of termination, the issue relating to Kristy has already been dealt with in paragraphs [78] to [85] and [93] to [96] above.

[107] Ms Jankowski’s alleged aggression and arrogance towards Ms Caffyn was also dealt with in the letter of termination, and has been considered in paragraphs [99] and [101] above.

Refusing reasonable instructions

[108] The issues outlined in this category of further reasons include both the till and credit card events (3 - 6 June 2014) together with the discovery of unapproved cash store purchases. In terms of the till and credit card matters, these were included as reasons in the letter of termination and so have been dealt with in paragraphs [86] to [92] above.

[109] In relation to the many unapproved cash store purchases that were discovered on 8 June 2014, there was no detail provided in the Outline of Submissions. As there does not appear to be any evidence before the Commission, in relation to unapproved cash store purchases, it is not possible to make a finding that this occurred.

(d) Performance issues

[110] The letter of termination did not deal specifically with Ms Jankowski’s poor performance. The letter did refer to the final warning given to Ms Jankowski following the meeting on 21 May 2014. The final warning cited Ms Jankowski’s poor performance as store manager and listed a number of examples. The examples given in the warning letter are not the same as those set out in the Respondent’s Outline of Submissions.

[111] There was evidence in relation to the customer database from Ms Caffyn and Ms Jankowski. Ms Caffyn explained that other performance related mistakes were discussed with Ms Jankowski over the phone and then captured in an email dated 4 April 2014. 96 It was conceded by Ms Caffyn that maintenance of the customer database was not included in the 4 April 2014 email.97

[112] Ms Jankowski recalled that she had told Ms Caffyn that she had not been entering the customer data consistently and that she had not been chasing staff up consistently about entering the data. She said that it was everyone’s job but that she was held responsible, as the store manager, for the data being entered. 98

[113] There is enough evidence before me in relation to non maintenance of the customer database for the Commission to make a finding. It is noted that Ms Jankowski acknowledged that the database had not been maintained as it should have been. Therefore, I find that Ms Jankowski did not maintain the customer database as required.

[114] Issues regarding rosters, incorrectly charging customers, not recording bookings (a wedding makeup booking) and forgetting to come in for her shifts appear to have been covered in Ms Caffyn’s email of 4 April 2014 as well as in the Final Employment Warning. This email was characterised as a second verbal and documented warning by Ms Caffyn. 99 Whilst the email stated that Ms Caffyn “will not tolerate another 3 months of non management performance.” there was nothing in the email which indicated that it was a second warning. It is clear from the email that Ms Caffyn was very concerned about a number of specific work performance issues and Ms Jankowski’s performance as store manager.

[115] It was acknowledged by Ms Jankowski that she had made a mistake in terms of misplacing the wedding makeup booking. She said that she came in from sick leave and did the bride’s makeup herself. She had admitted her mistake to Ms Caffyn during their subsequent telephone call. Ms Jankowski also stated that she had made some mistakes early on as there was some confusion in relation to charging for makeovers. It was Ms Jankowski’s evidence that she had told Ms Caffyn that she could take the payment out of her account. Therefore, I find that there were performance issues relating to not advising staff of a wedding makeup booking and issues with charging customers for makeovers.

[116] In relation to the stores sales performance having declined sharply, there was no evidence provided to support this assertion. Therefore, I am unable to make a finding regarding this particular issue.

(iii) Summary of Findings

[117] In summary, on the basis of the considerations contained in paragraphs [73] to [116] above, the following findings of fact have been made in relation to the reasons for Ms Jankowski’s dismissal.

[118] It has been found that:

Ms Jankowski’s conduct at the store meeting on 21 May 2014 was highly inappropriate, as it was aggressive and demeaning of Ms Caffyn.

Ms Jankowski was not the sole protagonist in relation to allegations of aggression and arrogance towards Ms Caffyn.

Ms Jankowski failed to maintain the customer database.

There were issues in relation to Ms Jankowski’s work performance eg wedding makeup booking and charging customers.

[119] Due to a lack of evidence from the company, the Commission was unable to make findings in relation to the reasons concerning:

Ms Jankowski’s behaviour towards Ms Bennell.

Ms Jankowski’s behaviour towards Kristy, generally, and particularly on 6 June 2014.

Taking money out of the till without Ms Deere’s prior approval.

[120] Therefore, the Commission has been unable to make findings of fact about any of the reasons contained in the letter of termination except a finding that Ms Jankowski’s behaviour was highly inappropriate at the 21 May 2014 meeting and that Ms Jankowski was not the sole protagonist in relation to allegations of aggression and arrogance towards Ms Caffyn. There is some overlap between the reasons in the letter of termination and the clarifications in the Respondent’s Outline of Submissions. In terms of the latter, the Commission, on the evidence, was only able to make findings in relation to the customer database, and certain work performance issues.

[121] The final employment warning given to Ms Jankowski, on 23 May 2014, by the company required that there be no further aggressive outbursts, no more mistakes and that Ms Jankowski was to control her excessive competitiveness towards other employees and customers with no customer complaints. There is no evidence before me that Ms Jankowski’s conduct, that was complained about in the 11 June 2014 email, took place as alleged. Therefore, it is not possible to find that Ms Jankowski contravened the requirements of the final employment warning.

[122] Accordingly, consideration can only be given to the findings set out in paragraph [118] above. These are that Ms Jankowski’s behaviour during the store meeting on 21 May 2014 was highly inappropriate and unacceptable; that Ms Jankowski was not the sole protagonist in relation to allegations of aggression/arrogance within a manager/employee relationship and that there were work performance issues including non maintenance of the customer database. Taking all of this into account, I find, on balance, that there was not a valid reason for Ms Jankowski’s dismissal.

2. Section 387(b) - notified of the reason

[123] It was argued on behalf of the Applicant that this section is not relevant unless there was a valid reason for the dismissal. Further, it was contended that notification of the reason should occur before the decision to dismiss is made. The Applicant submitted that she was not notified at the relevant time; was dismissed by text with a letter of termination following and the reasons relied upon by the company were not put to Ms Jankowski prior to the decision being made. 100

[124] The company submitted that it was agreed between the parties that the final warning letter of 23 May 2014 had, effectively, warned Ms Jankowski that she would be dismissed if there was any further misconduct. 101 It was also argued that Ms Jankowski had been counselled about her poor performance as a store manager and customer service, both informally and formally, since 2012. Further, Ms Caffyn’s e-mail of 3 March 2014 regarding Ms Jankowski’s conduct; the formal warning of 4 April 2014 in relation to customer record maintenance, her abruptness towards customers, wedding bookings and other matters; the telephone call between Ms Caffyn and Ms Jankowski, on 20 March 2014, relating to the Applicant’s unacceptable conduct towards Kristy, the second meeting on 21 May 2014 and the final employment warning dated 23 May 2014 and the e-mail and telephone contact between Ms Caffyn and Ms Jankowski on 10 and 11 June 2014 regarding Kristy and the cash from the till/credit card issues, were highlighted in support of the contention that Ms Jankowski had been notified of the reasons for her dismissal.102

Considerations and Conclusions

[125] The letter of termination stated that Ms Jankowski’s performance and conduct was still unsatisfactory and that it had been decided to terminate her employment for a number of reasons. It was Ms Caffyn’s evidence that four of the reasons listed had not been put to Ms Jankowski prior to her dismissal. The other two reasons (cash from the till and aggression and arrogance towards Ms Caffyn (conduct at store meeting on 21 May 2014) had been put to Ms Jankowski in e-mails on 10 and 11 June 2014 (till incident) and in the final employment warning of 23 May 2014.

[126] However, Ms Jankowski was notified by text that she was dismissed. This was followed up by a letter. Four of the reasons set out in the termination letter were not put to Ms Jankowski at any stage. Therefore, I find that Ms Jankowski was not given an opportunity to response to the reasons for her dismissal.

[127] Therefore, I find that Ms Jankowski was not notified of the reasons for her dismissal.

3. Section 387(c) - opportunity to respond

[128] As Ms Jankowski was not notified of the reasons for her dismissal, she was therefore not provided with an opportunity to respond. Ms Jankowski was notified by text that she was dismissed. A letter of termination was then sent to the Applicant. Four of the six reasons, set out in the letter, for her dismissal had never been raised with Ms Jankowski.

[129] Accordingly, I find that Ms Jankowski was not afforded an opportunity to respond to the reasons for dismissal.

4. Section 387(d) - support person

[130] On the evidence before me, Ms Jankowski had two other employees with her at the meeting on 23 May 2014. Further, at the second meeting on 21 May 2014, Ms Jankowski asked Ms Huang to sit in with her.

[131] I find, therefore, that there was no unreasonable refusal by the employer to allow Ms Jankowski to have a support person.

5. Section 387(e) - warnings about unsatisfactory performance

[132] As the reasons for Ms Jankowski’s dismissal, as set out in the letter of termination, relate primarily to her conduct, this section is not relevant in this case. It is noted however, that the final employment warning required that she make no major mistakes over the next six months.

6. Sections 387(f) and (g) - size of the business/dedicated HR

[133] The Applicant argued that Ms Caffyn was sufficiently sophisticated to consider procedural matters so that she filled out the Small Business Fair Dismissal Code Checklist. 103

[134] It was submitted by the Respondent that the company, given its size, should be entitled to some latitude in relation to any minor shortcomings in the process. The same latitude was sought in relation to the company not having a dedicated HR resource. 104

[135] The company is a small business employer with no dedicated HR resource. Ms Caffyn has worked previously as a business management consultant and a senior manager in large corporations and is a qualified engineer. This experience and background, in my view, modifies the degree to which account can be taken of the fact that the company is a small business employer with no dedicated HR.

7. Section 387(h) - any other relevant matters

[136] The company submitted that the following matters are relevant:

The respondent has voluntarily given Ms Jankowski nearly $10,000, since February 2013, to help her with her personal financial difficulties. 105

Ms Jankowski has been given additional paid annual leave and sick leave when she had run out of both entitlements, together with other forms of support. 106

Since late 2013, there had been numerous discussions with Ms Jankowski about her suitability as store manager. 107

Ms Jankowski had been provided with tools to assist her improve her performance. 108

Following her dismissal, it was discovered that Ms Jankowski may have been dishonest in claiming 14 days sick leave on 12 June 2014. 109

Following her dismissal, it was discovered that, contrary to store policy, Ms Jankowski had given her mother a discount. 110

[137] I have given consideration to whether any of these matters are relevant. As the company is a small business employer, account will be taken of those matters which reflect this particular approach, e.g. the first two items.

Conclusion

[138] In all of the circumstances of this matter, and having taken account of each of the factors set out in section 387, I determine, on balance, that Ms Jankowski’s dismissal was harsh, unjust and unreasonable.

[139] On the one hand, there was not a valid reason for Ms Jankowski’s dismissal and there were clear procedural deficiencies in relation to the process. On the other hand, even though they related primarily to her conduct, Ms Jankowski was warned in relation to the issues the employer had with her. As well, the business is a small business employer which does need to be taken into account, to the extent indicated above.

[140] However, in balancing all of these factors, I find that Ms Jankowski’s dismissal was harsh, unjust and unreasonable.

[141] Accordingly, it follows that, pursuant to section 385 of the Act, Ms Jankowski was unfairly dismissed.

REMEDY

[142] Section 390 of the Act sets out when the Fair Work Commission may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) The FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) The FWC is satisfied that reinstatement of the person is inappropriate; and

(b) The FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[143] With respect to the requirements of section 390, I am satisfied that Ms Jankowski was protected from unfair dismissal at the time of her dismissal (section 390(1)(a)) and that she has been unfairly dismissed (section 390(1)(b)). Further, Ms Jankowski has made an application under section 394 of the Act (section 390(2)).

[144] Section 390(3) states that the Fair Work Commission must not order the payment of compensation unless two conditions have been met. The first condition is that the Fair Work Commission is satisfied that reinstatement is inappropriate (section 390(3)(a)).

[145] Reinstatement was not sought on behalf of Ms Jankowski and reinstatement was resisted by the company. On the basis of the comments made earlier about the nature of the relationship between Ms Jankowski and Ms Caffyn, I am satisfied that it would be inappropriate to reinstate Ms Jankowski.

Compensation

[146] Section 390(3)(b) requires that the Fair Work Commission consider it appropriate, in all of the circumstances of the case, to order compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation is considered appropriate. Section 392(2) of the Act sets out the criteria for deciding the amount of compensation in all of the circumstances of the case. These criteria are:

“(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.”

[147] I will deal with each of the criteria in turn, guided by the Full Bench decision in Haigh v Bradken Resources Pty Ltd 111 (Haigh).). In Haigh, the Full Bench also referred112 to the Full Bench decisions which have applied the approach in Sprigg v Paul Licensed Festival Supermarket113 (Sprigg). I respectfully adopt the approach taken in Haigh.

Section 392(2)(a) - effect on the viability of the employer’s enterprise

[148] It was submitted by the company that, given its status as a small business, any amount of compensation awarded to the Applicant may affect the viability of the Respondent’s business. 114

[149] On the other hand, the Applicant contended that there is no evidence or submissions that the business’s viability would be affected by an award of compensation. It was argued that is not sufficient to merely assert that an award of any compensation may affect viability. 115

[150] There is no evidentiary basis before me on which to conclude that an award of compensation would affect the viability of the employer's enterprise.

Section 392(2)(b) - Applicant’s length of service

[151] Ms Jankowski’s length of service with the company was about two years four months.

[152] The Respondent contended that it was agreed between the parties that the Applicant’s period of service is not significant in length. 116

[153] On behalf of the Applicant, it was stated that this was not agreed and that the period of service is not inconsiderable. Further, it was stated that, because it is neither short nor long, it is a neutral factor for the purposes of section 392. 117

[154] Ms Jankowski’s length of service is a matter of fact - approximately two years and four months. In relation to the requirements of section 392, this is a neutral factor.

Section 392(2)(c) - remuneration likely to have received

[155] It was submitted on behalf of the Applicant that it was likely that employment would have continued for at least a further year or, in the alternative, six months. 118

[156] The Applicant stated that there had been difficulties between Ms Caffyn and shop staff, including the Applicant, for many months. However, it was stated that there had been no move by the Applicant to voluntarily leave or, save for the warning, the Respondent did not look as though it was going to dismiss the Applicant. Further, as the demotion from Shop Manager to sales assistant had not forced the Applicant to leave, it was argued that there is no reason to think that the Applicant would have brought the employment to an end any time soon. In addition, the commitment in the final warning letter to find a more suitable role within the next two months and the stated expectation of no mistakes during the next six months was said to be consistent with the Applicant continuing in the employer’s eyes for at least six months. 119

[157] For the company’s part, it was submitted that Ms Jankowski’s employment would have only continued until 3 July 2014, if she had not been dismissed on 24 June 2014. It was also argued that, even if the dismissal had not occurred on 24 June 2014 or, alternatively, 3 July 2014, due to her attitude, her refusal to accept any responsibility for her misconduct and the work performance issues, Ms Jankowski’s employment could have ended at any time. 120

[158] I have considered carefully the submissions of the parties on this particular aspect of the matter. I have formed the view that, had Ms Jankowski not been dismissed, it is likely that her employment would have continued for a further three months. This is on the basis that the company had committed to attempting to find a more suitable role for Ms Jankowski during the next two months, and then an additional month in the new role.

[159] For the purposes of the calculations, in accordance with the Sprigg principles, it is determined that the remuneration likely to have been received by Ms Jankowski would have been three months.

[160] This results in a provisional amount of $11,250.33. This is calculated on the basis of three months at $865.41 per week. 121

Section 392(2)(d) - efforts to mitigate loss

[161] It was submitted, on behalf of the Applicant, that she has had some casual work and so, therefore, has sought to mitigate her loss. Ms Jankowski’s earnings, up until the first day of the hearing (12 November 2014), were stated to have been $9,439.50. 122

[162] I am, therefore, satisfied that Ms Jankowski has made reasonable efforts to mitigate her loss.

Section 392(2)(e) - remuneration earned and income reasonably likely to be earned (section 392(2)(f)

[163] These sections of the Act deal with the amount of any remuneration earned by Ms Jankowski from employment in other work. This is, firstly, during the period between her dismissal and the making of an order for compensation, and, secondly, any income reasonably likely to be earned during the period between the making of an order for compensation and the actual compensation.

[164] The Commission has before it the remuneration earned by Ms Jankowski, between the dismissal and 12 November 2014. However, the Commission does not appear to have any information regarding the amount of remuneration earned between 13 November 2014 and the date of this decision.

[165] Therefore, Ms Jankowski is directed to provide to the Commission and to the Respondent, the amount earned between 13 November 2014 and the date of this decision, together with supporting documentation. The information is to be provided by close of business on Wednesday, 29 April 2015.

Section 392(2)(g) - other matters

[166] The company argued that the following matters are relevant:

The Respondent’s willingness to offer Ms Jankowski four weeks’ pay at the time of her dismissal, subject to conditions. This offer was declined. 123

Ms Jankowski was overpaid her annual leave by $419. 124

Ms Jankowski was paid special lump sum payments of over $9000 together with extra paid sick leave to assist with her personal difficulties. 125

The likely undeclared cash-in-hand earnings. 126

[167] Having considered these matters, the Commission has not been persuaded that they are relevant to the Commission’s considerations.

Section 392(3)

[168] Section 392(3) of the Act requires that, if the Commission is satisfied that the person’s misconduct contributed to the employer’s decision to dismiss the person, the Commission must reduce the amount it would otherwise order.

[169] The respondent stated that it was agreed between the parties that Ms Jankowski engaged in misconduct. It was argued that this misconduct must reduce the amount of compensation. 127 Further, it was submitted that, due to the gravity of Ms Jankowski’s misconduct and performance issues, the reduction for misconduct should be between 70% to 90%.128

[170] It was refuted, on behalf of the Applicant, that it was agreed between the parties that Ms Jankowski had engaged in misconduct. It was stated that there is no agreement that Ms Jankowski engaged in misconduct at any stage and that there was no evidence to support such a finding. However, if the Commission finds that there has been some misconduct, the amount of any reduction should be minor. 129

[171] As I have found that Ms Jankowski’s behaviour, during the meeting on 21 May 2014, was misconduct, I am required to reduce the amount the Commission would otherwise order. As the misconduct was such that it did not justify dismissal, a nominal reduction of 10% will be applied.

Contingencies and taxation

[172] As the protected period of continuous employment has passed (24 September 2014), there is no necessity to make a deduction for contingencies.

[173] The impact of taxation has been considered and a gross amount will be settled on.

Section 392(4) - shock or distress

[174] No part of the provisional compensation amount relates to any shock or distress suffered by Ms Jankowski.

[175] With respect to section 393 of the Act, there were no submissions that any amount of compensation should be subject to payment by instalments.

[176] Once the information requested from the Applicant is to hand, it will then be possible to finalise determination of the amount of compensation in lieu of reinstatement. This will be completed within two weeks of receipt of the information.

Appearances:

Mr G Dircks of Just Relations for the Applicant

Ms A Caffyn from the Respondent

Hearing details:

2014.

Melbourne:

November 12;

December 15.

Final written submissions:

Applicant, 9 January 2015

Respondent, 30 January 2015

Applicant, 12 February 2015

1 Exhibit R1 at paragraphs 32 - 41

2 Respondent’s Closing Submissions, dated 30 January 2015, at paragraphs 5 - 6

3 [2013] FWCFB 5279

4 Respondent’s Closing Submissions, dated 30 January 2015, at paragraphs 8 - 9

5 Ibid at paragraph 10

6 Ibid at paragraph 11

7 Ibid at paragraphs 12 and 15 - 16

8 Ibid at paragraphs 21 - 22

9 Ibid at paragraph 13

10 Ibid at paragraph 22

11 Closing Submissions in Reply on behalf of the Applicant, dated 12 February 2015, at paragraphs 2 - 5

12 [2009] HCA 34, 2 September 2009

13 Closing Submissions in Reply on behalf of the Applicant, dated 12 February 2015, at paragraphs 7 - 13

14 Ibid at paragraphs 19 - 21

15 Ibid at paragraphs 23 - 29

16 Ibid at paragraphs 31 - 33

17 Ibid at paragraphs 34 - 35

18 Ibid at paragraphs 36 - 39

19 Ibid at paragraphs 40 and 47 - 48

20 Ibid at paragraphs 41 - 42

21 Ibid at paragraph 43

22 Ibid at paragraphs 52 - 58

23 Closing Submissions on behalf of the Applicant, dated 8 January 2015, at paragraph 1

24 Closing Submissions in Reply on behalf of the Applicant, dated 12 February 2015, at paragraph 63

25 New England and Western Tenants Advice and Advocacy Service v Annabel Doherty [2013] FWCFB 9206 at [8]

26 Respondent’s Closing Submissions, dated 30 January 2015, at paragraph 33

27 Transcript PN 1179 - 1180

28 Ibid PN 1179, Exhibit R1 at paragraph 7 and Respondent’s Closing submissions, dated 30 January 2015, at paragraph 32

29 Ibid PN 1179 - 1180

30 Ibid PN 1180

31 Exhibit R2 at paragraph 7

32 Ibid

33 Ibid

34 Ibid

35 Ibid

36 Ibid

37 Transcript PN 1273

38 Ibid PN 1271 - 1272

39 Exhibit A3 at Attachment HJ 12

40 Ibid

41 Transcript PN 1310 - 1312

42 Outline of Submissions on behalf of the Applicant, dated 27 October 2014, at paragraph 74

43 Ibid at paragraphs 78 - 79

44 Closing Submissions on behalf of the Applicant, dated 8 January 2015, at paragraph 5 and Exhibit A2 at paragraphs 24 - 31

45 Closing Submissions in Reply on behalf of the Applicant, dated 12 February 2015, at paragraph 83

46 Ibid at paragraphs 90 - 92

47 Outline of Submissions on behalf of the Applicant, dated 27 October 2014, at paragraph 75 and 77 and Closing Submissions on behalf of the Applicant, dated 8 January 2015, at paragraphs 8 - 53

48 Closing Submissions in Reply on behalf of the Applicant, dated 12 February 2015, at paragraphs 94 and 97 - 99

49 Ibid at paragraph 98

50 Transcript PN 1516 - 1518 and Exhibit R2 at paragraph 29

51 Ibid PN 1519 - 1522

52 Exhibit R2 at paragraph 30

53 Transcript PN 748

54 Exhibit R1 at paragraph 8

55 Ibid

56 Exhibit A3 at Attachment HJ3

57 Ibid at Attachment HJ5

58 Ibid at Attachment HJ9

59 Ibid at Attachment HJ12

60 Ibid

61 Transcript PN 1483 - 1496

62 Ibid PN 1773 - 1775

63 Ibid PN 1773 - 1775 and 1779 - 1800 and Exhibit R2 at paragraph 35

64 Exhibit R2 at paragraph 33

65 Exhibit A3 at Attachment HJ 16

66 Ibid

67 Transcript PN 1643 - 1647

68 Ibid PN 1648 - 1653

69 Ibid PN 1656 - 1676 and Exhibit R2 at paragraph 36

70 Ibid PN 1674

71 Ibid PN 1668 - 1670 and ibid at paragraph 30

72 Ibid PN 2121 and Exhibit R5 at paragraph 5

73 Ibid PN 709 - 715

74 Ibid PN 724

75 Ibid PN 725 - 729

76 Ibid PN 730

77 Ibid PN 1680 - 1682 and Exhibit R2 at paragraph 33

78 Exhibit A3 at Attachment HJ12

79 Ibid at paragraph 33 and Attachment HJ12 and Transcript PN 1563 - 1564

80 Ibid PN 1568 - 1573 and 1583

81 Ibid PN 720 - 721, 783 and 800 - 806 and Exhibit A3 at paragraphs 84 - 86

82 Ibid PN 1562 and Exhibit A3 at Attachment HJ12

83 Ibid at Attachment HJ12

84 Transcript PN 1694 - 1695

85 Exhibit A3 at Attachment HJ12

86 Transcript PN 1613

87 Ibid PN 1609 - 1625

88 Ibid PN 1485 - 1496 and 1696

89 Exhibit R2 at paragraph 22

90 Transcript PN 848

91 Ibid PN 880

92 Ibid PN 887 - 890

93 Exhibit R1 at paragraph 7

94 Closing submissions on behalf of the Applicant, dated 8 January 2015 at paragraphs 84 - 86

95 Transcript PN 1519 - 1523

96 Ibid PN 1409 - 1433, Exhibit A3 at Attachment HJ5 and Exhibit R2 at paragraph 27

97 Ibid PN 1435

98 Ibid PN 698 - 699

99 Ibid PN 1439 - 1444 and Exhibit R3 at paragraph 27

100 Exhibit A1 at paragraphs 30 - 35, Closing Submissions in Reply on behalf of the Applicant, dated 12 February 2015, at paragraph 117 and Closing Submissions on behalf of the Applicant, dated 8 January 2015, at paragraphs 96 - 97

101 Respondents Closing Submissions, dated 30 January 2015, at paragraph 37

102 Exhibit R1 at paragraphs 8 - 14

103 Closing Submissions in Reply on behalf of the Applicant, dated 12 February 2015, at paragraphs 124 - 129

104 Ibid at paragraph 39 and Exhibit R1 at paragraphs 17 - 19

105 Exhibit R1 at paragraph 20

106 Ibid at paragraphs 21 - 22

107 Ibid at paragraph 23

108 Ibid at paragraph 24

109 Ibid at paragraph 25

110 Ibid at paragraph 26

111 [2014] FWCFB 236

112 Ibid at paragraphs 10 - 12

113 (1998) 88 IR 21

114 Exhibit R1 at paragraph 43 and Respondent’s Closing submissions, dated 30 January 2015, at paragraph 42

115 Closing Submissions in Reply on behalf of the Applicant, dated 12 February 2015, at paragraphs 130 - 135

116 Respondent’s Closing submissions, dated 30 January 2015, at paragraph 43

117 Closing Submissions in Reply on behalf of the Applicant, dated 12 February 2015, at paragraphs 136 - 137

118 Ibid at paragraphs 140 and 143 - 144 and Exhibit A1 at paragraph 60

119 Ibid at paragraphs 141 - 142

120 Exhibit R1 at paragraph 43 and Respondent’s Closing submissions, dated 30 January 2015, at paragraph 43

121 Exhibit R4 at Attachment KA-04

122 Transcript PN 658 - 659 and Closing Submissions on behalf of the Applicant, dated 8 January 2015, at paragraph 163

123 Exhibit R1 at paragraph 4

124 Ibid at paragraph 6

125 Ibid at paragraph 7

126 Ibid at paragraphs 11 - 12

127 Respondent’s Closing submissions, dated 30 January 2015, at paragraph 47

128 Exhibit R1 at paragraph 8

129 Closing submissions in Reply, on behalf of the Applicant, dated 12 February 2015, at paragraphs 145 - 151

Printed by authority of the Commonwealth Government Printer

Miss Helena Jankowski v Kryolan Australia Pty Ltd

[2015] FWC 2209

23 APRIL 2015

DECISION