Mrs Carolyn Leys v Gunnedah Preschool Kindergarten Association Incorporated T/A Gunnedah Preschool
[2016] FWC 3262
•17 JUNE 2016
| [2016] FWC 3262 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Carolyn Leys
v
Gunnedah Preschool Kindergarten Association Incorporated T/A Gunnedah Preschool
(U2015/16856)
COMMISSIONER RIORDAN | SYDNEY, 17 JUNE 2016 |
Application for relief from unfair dismissal.
[1] This decision relates to an application by Ms Carolyn Leys for an unfair dismissal remedy against Gunnedah Preschool Kindergarten Association Incorporated T/A Gunnedah Preschool (the Preschool).
[2] Ms Leys was the Director of the Preschool, having commenced employment with the Preschool in that role in January 1994. Ms Leys was terminated on 30 November 2015.
[3] Leave was granted in accordance with section 596(2) of the Fair Work Act 2009 (the Act) to allow Ms Andelman, of Counsel and Mr Robert Seals for the Independent Education Union of Australia (IEU) to represent Ms Leys and for the Preschool to be represented by Mr Fagir of Counsel and Mr Greg Selig from Workplace Advisory Group.
[4] It is not contested that the Preschool is a small business, employing some 12 employees, at the date of Ms Leys’ termination. The parties agree that the Small Business Fair Dismissal Code applies to this situation.
[5] Witness statements were sworn on behalf of Ms Leys, her daughter Donna Leys, Ms Tracey, Director and Founder of Gunawirra (a not for profit organisation working with young Aboriginal children) and Ms Leys’ husband Dr John Leys. The Preschool relied on sworn statements from Ms Elle McRae (Acting Director), Ms Tabatha Hopkinson (Administration Officer) and Ms Emily Goodall (who was the Vice President of the Preschool at the time of Ms Leys’ termination).
Background
[6] Gunnedah is a town in regional NSW, approximately 330km north-west of Sydney and 75km west of Tamworth.
[7] The Preschool is governed by a Committee of Management who are traditionally the parents of the students. As a result, the tenure of each Committee member is normally of a short duration. The Director of the Preschool is the most senior employee.
[8] From mid-2015, Ms Leys encountered difficulties in managing the Administrative Officer of the Preschool, Ms Hopkinson. Ms Hopkinson lodged a bullying complaint against Ms Leys in August 2015 with the then President of the Preschool, Ms Toni King.
[9] Ms Leys went on sick leave on the 26th and 27th of August 2015 due to stress caused by the bullying complaint. Ms Leys was in Sydney at a prearranged conference from 2 September to 4 September and took long service leave from 7 September until 11 September 2015.
[10] On 11 September 2015 Ms Leys was notified by the President that, as a result of the complaint from Ms Hopkinson, it was in the best interests of all concerned that she should be stood down on full pay until there was a plan to resolve the issue. Ms Leys was advised to keep this matter confidential. Ms Leys did speak to her mentor, Ms Tracey, about the bullying complaint.
[11] During this period one of the funding sources of the Preschool, Gunawirra, offered to provide a mediator to help the Preschool through this issue. On 28 September 2015 the CEO of Gunawirra and Ms Tracy sent a joint email to the President of the Preschool asking for Ms Leys to be restored into her position as soon as possible.
[12] The President requested Ms Leys’ return her Preschool owned laptop and any other items belonging to the Preschool on 6 October 2015.
[13] Relevantly, before returning the laptop Ms Leys deleted information from it which she believes was personal information and non-essential documentation. When the Acting Director, Ms McRae, opened the laptop, she discovered that all of the information pertaining to the Preschool had been deleted by Ms Leys. The laptop computer was then sent to two IT specialist companies in an attempt to retrieve the information that was previously on the computer. The Preschool had limited success in retrieving this information as a result of this process.
[14] On the 19 October 2015, the then Vice President of the Preschool, Ms Goodall, sent Ms Leys a letter with seven issues of concern. This correspondence invited Ms Leys to a meeting on 27 October to allow her opportunity to show cause as to why her employment should not be terminated.
“Dear Carolyn,
Your employment with Gunnedah Pre-School
The Committee received a complaint from Tabatha Hopkinson dated 18th August 2015 alleging feelings of bullying and harassment by you. The committee undertook an informal investigation into these allegations and offered mediation as an option for you and Tabatha to resolve the issues. Due to your Union Organisers insistence that he be present at the non-formal process Tabatha withdrew her willingness to participate due to feelings of potentially being targeted during this process.
During the course of this process and the investigation, the committee has the following issues and concerns in relation to your employment:
1. You breached your duty of care to the pre-school and your position as Director by abandoning your role without notice on 27th August 2015. This placed the preschool in a compromised position with their licence due to staff being away sick that day and not having enough qualified teaching staff for the number of children there that day. Two parents had to take their children home to ensure compliance with the numbers, which inconvenienced them.
2. Acted contrary to the pre-schools Communication Policy where it states to "be open, honest and confidential with communication". It is considered that you have breached confidentiality to Gunawirra by discussing the sensitive situation of the complaint lodged by Tabatha with them and divulging your intended actions with them prior to notifying the school. The pre-school has received emails from Gunawirra advocating strongly on your behalf placing the pre-schools committee in a difficult position. This action has potentially bought the pre-schools name into disrepute and possibly fractured a strong business relationship with Gunawirra.
3. Failure to provide the appropriate Award/contract conditions to employees. These are:
• Informing Tabatha that she wasn't entitled to be paid at Support Worker Level 3 due to her not having Certificate 3-this is not the case.
• Making employees work extra hours during the term to enable them to have time off in the vacation period. The Award states, "Where a workplace is closed during a vacation period, other than Christmas vacation, and no work is available, an employee will be paid the ordinary rate of pay during such a period." This situation has exposed the pre-school to a potential serious industrial issue where there could be detrimental financial consequences for the pre-school.
4. Failure to provide appropriate reports to the Crown Lands Department as requested in July this year.
5. The committee would like you to explain the deletion of the pre-schools emails on the Directors laptop.
6. Staff have advised during the course of the investigation the following:
• Withholding information to staff to enable them to perform their duties
• Staff scared to raise issues with you for fear of potential backlash
• Not managing staff in an appropriate way by being harsh and then when you cool down you apologise. This has been indicated as pattern behaviour.
7. You advised during the course of the investigation that "Tabatha is one of the best admin they have had but she is still not great. Carol has been too scared to say much to Tabatha in the past if she was doing anything wrong for fear of Tabatha getting defensive about it. "It is your role as her manager to provide this feedback to her. This type of management style could be an indication of Tabatha not being provided the appropriate information/resources to do carry out her role properly leading to her having to answer to performance issues and creating tension between you and Tabatha when she is seen to be not carrying her role correctly.
In view of this most recent unsatisfactory conduct, we consider that there are sufficient grounds to terminate your employment due to the employment relationship being potentially diminished. However, a final decision has not been made.
A meeting has been scheduled for Tuesday 27th October 2015 at 1.30pm at Gunnedah Community College Elgin Street. You are directed to attend that meeting. At this meeting, you will be given an opportunity to show cause as to why your employment should not be terminated. You may bring a support person to the meeting, if you wish.
If you fail to attend the meeting on Tuesday 27th October 2015, Gunnedah Pre-School will make a final decision regarding your ongoing employment, in your absence. This may include the termination of your employment with the pre-school.
If you have any queries, you should contact Emily Goodall.
Yours sincerely
Emily Goodall” 1
[15] Ms Leys attended the meeting on 27 October and denied the allegation in relation to the deletion of corporate information from the Preschool’s laptop. Ms Leys claimed that she only deleted personal information that had been stored on the computer.
[16] Ms Leys sent a written reply to the allegations contained in the earlier correspondence on 30 October 2015.
“Dear Ms Goodall,
Further to what was foreshadowed in our meeting on Tuesday 27 October I have put in writing further responses to the allegations and issues raised. The below reflects my response to the numbered allegations in your letter of 19 October 2015.
Allegation One
I left the preschool on 27th August when I was so ill with extreme work related anxiety that I could no longer function. I left to attend a doctor's appointment in order to treat my illness.
I did not abandon duties without notice; I informed 2 staff on duty (Zindie and Gemma), asking them to ensure that the staff member (Supervisor) who would be in charge in my absence, but was not immediately available, was made aware that I had to leave.
The preschool keeps a written record of who is Supervisor at the Service, at any one time, while the service is open to children. It is on a notice board in the bigger activity room. It has been discussed several times, and all staff are aware, that there is a hierarchy of who will be supervisor. The hierarchy is 1. myself, 2. Donna, 3. Elle, 4. Kate.
Allegation Two
I did not breach confidentiality as I was speaking to Gunawirra in their well-known capacity of supervision during a regularly scheduled session. No personal details were disclosed.
I do not feel there is an official business relationship between the preschool and Gunawirra. Gunawirra are a philanthropic organisation who I approached. They liked my work at the preschool, so I negotiated various benefits to flow from Gunawirra to the preschool. Nothing was given under any form of contract or funding agreement. Nothing was guaranteed or recurrent. Gunawirra's main and original role was to provide the supervision support to myself as Director. The remainder was an added bonus when funds/resources enabled Gunawirra to give. Gunawirra make decisions on where they direct these services and I am not in a position to influence that, they are a professional organisation who can make their own assessments.
I cannot be held responsible for Norma's terminology re seeking my 'reinstatement' or for her use of this term. There is no particular advantage to me in Norma knowing of my circumstances. If anything it has actually placed me into disrepute.
Gunawirra's role in the situation, from my understanding, was to see the speedy resolution to the situation, keeping both Tabatha and myself at the preschool. They wished to offer their entirely confidential services free of charge if they could do anything to help.
Allegation Three
Tabatha was engaged on a contract of employment that sought to classify her as a Support Worker Level 3. However, Tabatha was paid in excess of the award entitlement for a Support Worker Level 3. Under the terms of the Modern Award a worker in Tabatha's position with her skills is classified as a Support Worker Level 2. This is because Tabatha does not hold an AQF Certificate III or equivalent, and I do not consider that she performed work at the level of a person who holds a Certificate III. This was and is my honest belief. I had heard that audits were being conducted at preschools. It was my understanding that the audits would include appropriate classification of staff. Because of this I sought to change Tabatha's classification from Support Worker Level 3 to Level 2 in line with the classifications of the Modern Award. This was a more true reflection of Tabatha's above award entitlements. I never proposed to reduce Tabatha's wage or any other entitlements.
"Where a workplace is closed during a vacation period, other than Christmas vacation, and no work is available, an employee will be paid the ordinary rate of pay during such a period."
All staff are made well aware of this award statement and I never make employees work during school term break if there is "no work available" nor do I make them work extra hours during term time. Staff are made aware and it is in their work contracts that they only receive 4 weeks of annual leave per year which is taken at Christmas and that term break is not a vacation period, they can be required to work if there is work which requires completion.
All staff are able to decide for themselves when they will complete their work. Many choose to work extra time during term time, ensuring their job tasks are completed, as they wish to have the school term break as a holiday. I leave these decisions to staff and trust them to complete work at a time to suit themselves.
There was a time in past years where staff were struggling to complete their written records but they did not want to do them in the term break. Together we drew up a method to organise this and staff generally found that working 30 hours would ensure records were completed. This was done to help those who were struggling with organisational skills. No one was forced to adhere to the plan, they were always able to work their rostered hours and attend during term break to complete anything which they were unable to finish in term time.
Some years ago, as staffing changed - I ensured this system was removed - I think it was around the time the Modern Awards came in, and I left it to staff to decide how it best suited them to complete their records.
Tabatha is required to work during school term break as her work does not depend on the children's attendance; office/clerical work is still available.
All industrial decisions were made on the advice of CCSA. All communication with the CCSA was over the phone. The CCSA were phoned regularly to ensure we were doing the correct thing by the award. They never provided written instruction unless it was something like a sample letter, contract etc. This is the way the CCSA provide information to me as it is a phone support service.
Allegation Four
I am not aware of any report due in July. Crown Lands Department open their reporting period in July for a report which is due at the end of October. I expected to be back at work to duly complete any due reports for the Department.
Allegation Five
I receive hundreds of emails, sometimes in just 1 day. As I tend to hoard, the email was clogged. I deleted anything which was already dealt with or which was non-essential, leaving recent copies of newsletters/information. I did this to make the navigating of essential emails possible.
I did delete emails which were of a personal nature or contained confidential information (eg correspondence re this complaint).
The preschool may have logged into the incorrect "section" of the computer. They need to log in to "Carolyn" (not into "other users") with the Microsoft password- which I wrote on a stick-up and stuck onto the keyboard/closed it inside the computer for them.
I have located a back-up which I will delete personal files from and can hand to the preschool if needed.
Allegation Six
None of these issues have been raised in the past. My length of employment and good record during this time shows no pattern of such behaviour. I replied to all phone calls and emails from the Board which required a return. This may have taken some time as I always waited until I could consult with the union prior to replying. I was also attending conferences, training and was on leave during the past weeks. In many cases I was unavailable for immediate replies.
My past 20years at the Preschool have been years of good solid management. There has never been a complaint about failure to submit any application, funding requirement, documentation, acquittal etc.
Allegation Seven
Another role of a Manager is to be empathetic and work within the team. I had been giving Tabatha constructive criticism but her reactions were to lay blame, say she was not told or to make excuses.
I openly told Tabatha at a mediation meeting run by Toni King that I was not comfortable with the way she responded to corrective direction, therefore I was only instructing her on important issues and doing the less important tasks myself. In response to this Toni
1. directed me to provide Tabatha with instruction in the future and
2. directed Tabatha to follow those instructions.
When I was given this direction by the Board I conscientiously followed it. This complaint is the result.
Conclusion
When I first started at the preschool in January 1994 it was a one room building with a non-regulation playground. There were times when I refrained from banking my pay cheque, as there was not enough money in the preschool's bank account. Under my management and with an enormous amount of hard work all of this improved. I accessed funding which was not traditionally accessed by preschools, in order to improve the centres financial situation. The Preschool building was improved with several extensions and renovations being done over the years. The Preschool grew from a one room to a two room service, catering for 50 children per day. (Originally the preschool could only enrol 30 children per day.) The playground was extensively renovated using the design of a leading national playground designer. The preschool grew to become a truly excellent service.
I have ensured that all checks by regulatory authorities were met.
I have implemented programmes outside the scope of an average preschool and employ over numbers of staff. At a time when many preschools are struggling to survive and charging parents very high fees, the Gunnedah Preschool has an extremely healthy bank balance and parent fees are among some of the lowest in the state.
While many preschools are struggling to survive, the Gunnedah Preschool is purchasing land and expanding. Not only is the preschool expanding physically, it is expanding the programmes it offers to the community. These programmes are outside what most preschools do, but do much to enhance community interaction and best outcomes for the children/families the preschool services. I was recently successful in accessing a large amount of funding through an application to the IAS (Indigenous Assistance Strategy) when many preschools received small amounts of funding- or none at all. This funding further enhances preschool staffing and the community work.
I work within many community organisations to improve outcomes for the preschool. I received an "exceeding" rating during the last regulatory "Assessment and Rating" visit in 2013 for this work. I have a good working relationship with these organisations.
This work has been recognised by CCCC (Community Child Care Co-operative) and the MCSA (Mobile Children's Services Association) who both asked me to present at conferences this year. CCCC also recognised the preschool by producing a video and a booklet which included the Gunnedah Preschool as a model for others.
I ask that the Committee take the above into their consideration in coming to a decision on my future employment with Gunnedah Preschool. I wish to return to my position as Director as soon as possible.
Yours sincerely,
Carolyn Leys” 2
[17] Ms Leys had introduced a modern system of communicating with the families of the children who attended the Preschool by the introduction of the Preschool’s Facebook page. Ms Leys’ Facebook page was linked to that of the Preschool for technical reasons. Ms Leys’ daughter, Donna, was the administrator of the Facebook page from her residence in Sydney. It is alleged that Ms Leys then set up a process to delete the Preschool’s Facebook page. Upon seeing this, Ms Donna Leys contacted her mother to advise her that users could see that she was deleting or intending to delete the Preschool’s Facebook page. Ms Leys claimed to be horrified about this process and rescinded the request to delete the Facebook page. Ms Leys claimed that she was only trying to stop Ms Hopkinson from viewing her Facebook page.
[18] On 25 November Ms Leys was sent a second show cause letter claiming that she had systematically deleted information from the laptop computer without authorisation. This letter invited Ms Leys to show cause why she should not be summarily dismissed for serious misconduct.
“Dear Carolyn,
Your employment with Gunnedah Pre-School
The committee has considered your responses to performance issues raised with you at a meeting held on the 27th October 2015 with myself and your Union Representative Peter Bishop and Tania Thompson, the preschools HR Consultant. Further to this meeting you provided the Committee with written response to these issues.
Since that time the committee has received an IT audit of the schools laptop that was conducted by an independent IT Consultant. The laptop was the one issued to you by the school.
The audit has concluded that you have systematically deleted information from the centre's laptop computer. This has been done without authorisation. In addition to the issues raised above the committee is of the belief that you have also;
1. Leaked sensitive internal information to external stakeholders, including sensitive matters involving other employees without permission of the centre or the other employee;
2. Acted in an inappropriate manner by threatening to interfere with the centre's communication system and in particular threatened to delete its face book communication page.
The Committee is of the view that your actions described above amount to serious misconduct, and are considering terminating your employment on that basis.
Before a final decision is made as to whether to summarily dismiss you for serious misconduct, you are invited to provide written reasons why your employment should not be terminated.
The invitation is open for your acceptance until 4.00pm Thursday 26 November 2015.
The Committee will then consider its position in light of your reasons provided (if any) and advise you of its decision by no later than 4.00pm Monday 30 November 2015.
Yours sincerely
Emily Goodall” 3
[19] Ms Leys responded on 26 November in the following terms;
“Dear Emily,
I have always admitted to deleting information from my preschool laptop. I have been the Director for more than 20years and the computer was used solely by me. For years I have regularly deleted information, as I was not aware of any requirement for express authorisation to do so, and considered it to be part of my role as Director. I deleted information for 2 reasons:
1. The computer went everywhere with me. As the Nominated Supervisor I was required to be available and to deal with issues on very short notice, whether on leave or traveling for work. There was personal information stored on the computer which was not relevant to the preschool.
2. There was a lot of information which was non-essential to current operations. The information was saved from the past and was related to items which were finalised. As I worked extremely long hours this was a task which should have been done sooner, but time did not allow. I cleaned this up to enable easier navigation of the files to access relevant information.
I did not leak information, as explained previously. I spoke to a support person/councillor whose role was to listen to confidential issues being faced by the preschool and to provide confidential assistance.
I did not threaten to interfere with the centres communication system nor did I threaten to delete its Facebook page. I had never had a private Facebook page until one was created for me at the same time as the Preschool page was set up. I was told that it was essential in order to be linked with the Preschool Facebook page.
I had been advised by the Board not to have any contact with preschool staff. When Tabatha Smith sent a friend request to my private Facebook page I was extremely shocked
In order to avoid Tabatha I attempted to remove the links between the preschool Facebook and my own. Not being familiar with social media technology I did click a link which I thought would delete the connection between the preschool Facebook page and my private Facebook. When I was alerted by the preschool Facebook maintenance worker that I had made a mistake, I followed her instructions to remove the deletion instruction. The page was never deleted. I also asked the Facebook maintenance worker to assist me to ensure that Tabatha could no longer access my personal Facebook or send friend requests. I was doing as the Board had instructed.
Yours sincerely
Carolyn Leys” 4
[20] Ms Leys was terminated on 30 November 2015 by way of the following letter;
“Dear Carolyn,
The board has received your response to our Invitation to provide a reply to our correspondence of 25 November 2015. The board has now considered the issues raised in your correspondence.
We note your admission that you have previously deleted files from the school's computer system. We also note that this admission is a departure from your response of 27 October 2015, when the issue was put to you during your interview on that day in the presence of myself and Ms Tania Thompson. During that interview you denied having deleted any files from the school's systems other than personal emails. It appears that you have been less than truthful with us about this critical matter.
We also note your denials in regard to the leaking of sensitive information and the further allegation that you also threatened to delete the school's Facebook communications.
These denials are inconsistent with information received by the board. That information clearly demonstrates that your assertions are false. The information includes correspondence from a stakeholder and a screenshot of a post made by you on Facebook on 14 November. Your Facebook post indicates that you had scheduled the Gunnedah Preschool page for deletion at approximately 6.08pm on that day.
The board is of the belief that you have deliberately conducted yourself in a manner which is so serious that it has no other option other than to terminate your employment.
I therefore inform you that your employment with Gunnedah Preschool Incorporated has been terminated with immediate effect from today, Monday 30 November 2015.
Your accrued entitlements including your accrued annual and long service leave will be paid into your normal account.
Yours sincerely
Emily Goodall” 5
Statutory Provisions
[21] Section 388 of the Act sets out the legislative framework for the Small Business Fair Dismissal Code as follows;
“388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”
[22] The Small Business Fair Dismissal Code is set out as follows;
“Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
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.”
[23] Serious misconduct, as specified by s.12 of the Act, is defined by the Fair Work Regulations 2009 in the following manner;
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”
Submissions
[24] Ms Andelman submitted that there were three issues that needed to be resolved in this matter, namely:
a) whether there was a lawful or a proper decision taken by the Preschool to terminate Ms Leys;
b) whether the summary dismissal provisions of the Code have been complied with by the Preschool, and
c) whether the dismissal was unfair, pursuant to section 385 and 387 of the Act.
[25] Ms Andelman referred me to the Full Bench decision in Ryman v Thrash Pty Ltd 6where the Full Bench determined;
“[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates in the following way:
(1) If a small business employer has dismissed an employee without notice – that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.
(2) In assessing whether the “Summary dismissal” section of the Code was
complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to
justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has
carried out a reasonable investigation into the matter will be relevant to the second element.”
[26] Ms Andelman questioned whether the Rules of the Preschool had been complied with in dismissing Ms Leys. Ms Andelman claimed that the Committee meeting that resolved to dismiss Ms Leys was not convened in accordance with the Rules, that there was not a proper process undertaken in relation to a motion being put to the Committee and that there were no minutes taken of the meeting. Ms Andelman claimed that the decision to terminate Ms Leys was made by Ms Goodall and not the Committee, therefore there was no lawful decision to terminate Ms Leys taken by the Committee.
[27] In relation to the Code, Ms Andelman submitted that it was not sufficient for Ms Goodall to front up to the Fair Work Commission (FWC) and simply say that she believed that Ms Leys was dishonest and disingenuous. Such a belief had to be based on reasonable grounds, ie, there needs to be sufficient evidence to support Ms Goodall’s view and belief.
[28] Ms Andelman submitted that if the decision to terminate Ms Leys is found to be not consistent within the Code, then the FWC must consider whether the Preschool has complied with section 385 and 387 of the Act. Ms Andelman argued that there were numerous breaches of the criteria in section 387, particularly in relation to the issues of valid reason and procedural fairness.
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
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.”
[29] Mr Fagir submitted that on the basis that Ms Leys was summarily dismissed, the Preschool had to satisfy the appropriate provisions of the Code (see above). Mr Fagir claimed that this test could be satisfied by answering the following questions:
a) Did the decision maker actually believe that the employees conduct was sufficiently serious to justify immediate dismissal?
b) Was the conduct, subject of the belief, serious misconduct?
c) Did the decision maker have reasonable grounds to hold this belief?
[30] If the answer is “yes” to all of the above questions, Mr Fagir claimed that the dismissal is compliant with the Code, therefore the application must be dismissed.
[31] Mr Fagir argued that the delay between the alleged misconduct of Ms Leys and her dismissal was due to the thorough investigation that had been undertaken by the Preschool. The delay in the investigation was caused by the need for two IT investigations and an abundantly cautious approach, under advice, to provide the necessary procedural fairness.
[32] Mr Fagir argued that Ms Goodall had the necessary authority, as an Officer and Agent of the Preschool, to dismiss Ms Leys.
[33] Mr Fagir stressed the point that the question at hand was whether Ms Goodall believed that the conduct was serious misconduct that justified dismissal. Mr Fagir summarised the issues which led to Ms Goodall’s belief as follows:
a) Ms Leys deliberately deleted files from the Preschool’s computer system;
b) Ms Leys had threatened to delete the Preschool’s Facebook page;
c) Ms Leys, contrary to instruction, had shared confidential information in relation to the dispute with Ms Tracey from Gunawirra; and
d) Ms Leys had been untruthful during the course of the investigation by first denying that she had deleted any files from the laptop and then claiming that she had only deleted personal information.
Consideration
[34] I have taken into account all of the submissions and evidence that have been provided by the parties. The fact that any issue has not appeared in any summary of the submissions or in the proceeding paragraphs should not be viewed that those issues are irrelevant or have not been considered.
[35] I have taken into account that Ms Tracey was a confidant and mentor of Ms Leys. Ms Tracey, who by any definition was a trustworthy and impressive witness, testified that her focus was to maintain the good relationship between Gunawirra and the Preschool for the sake and care of the children. I accept this evidence and support the actions of Ms Tracey in this matter.
[36] I have taken into account that Ms Leys did not delete the Preschool’s Facebook page, even after she was told that such an action was permanent and irretrievable by the administrator of the page. If Ms Leys was attempting to inflict maximum damage and inconvenience upon the Preschool, then she would have undertaken that final click.
[37] I have taken into account that the dismissal of Ms Leys stemmed from a minor and inappropriately conceived bullying complaint from Ms Hopkinson. Put simply, the Preschool dealt with this complaint in a manner which was unfair to Ms Leys. The cascading events that followed this complaint resulted the issue moving from a “molehill to a mountain.”
[38] I have taken into account the delay in the investigation and disciplinary process. Such a delay would have caused additional stress and anxiety upon Ms Leys. I accept that the Committee was taking abundant caution in relation to the process.
[39] I have taken into account the lack of professional and corporate experience on the Committee of the Preschool. Ms Goodall described herself as a “young, stay at home mum with a few years experience in retail.” As a result, I express no criticism of Ms Goodall or the Committee in relation to the wording of the correspondence or the process that was undertaken.
[40] It is not contested that Ms McRae has been appropriately appointed to the position of Acting Director of the Preschool by the Committee. In Baxter v Dwyer 7, Buchanan J held:
“74. In any event, a contrary conclusion would not avail the respondents. First, there is no doubt about the substance of the resolution passed on 11 June 2014, despite the infelicities in transcription. If the meeting on 17 September 2014 was irregular, that resolution would remain in place. But the meeting on 17 September 2014 was either not irregular or its outcome was ratified on 24 September 2014.”
[41] Based on the decision in Baxter, even if the meeting that was convened to dismiss Ms Leys was incorrectly convened and procedurally incompetent, a subsequent meeting of the Board has ratified the termination of Ms Leys by the appointment of Ms McRae as the Acting Director. I have taken this into account.
[42] In my opinion, the principal issue in this case is the systematic deletion of material from the Preschool’s laptop and one of the external hard drives by Ms Leys. Ms Leys claimed that she only deleted personal and old irrelevant information from the laptop before it was returned. After being issued with a second show cause letter, which identified the deletion of the files and information off the laptop as being a significant and serious issue, Ms Leys spent the next three days meticulously deleting information from the external hard drive that was located at her house. Ms Leys admitted that the hard drive was returned in the same condition as the laptop. The second hard drive, which was kept at the Preschool, has not been found. I have taken this into account.
[43] I have taken into account that, following the return of the laptop and hard drive from Ms Leys, the Preschool did not have an electronic copy of any of its policies, nor a copy of recent funding requests and the associated documentation or copies of any recent emails.
[44] I have taken into account that Ms Leys recollection of the events during this stressful period could be best described as being spasmodic.
[45] I have taken into account the evidence of Ms McRae that the Preschool almost missed out on applying for $453,000 funding from the Indigenous Affairs Network due to Ms Leys deleting all of the emails associated with this application. Ms McRae advised me that she had to undertake urgent rectification work to submit the funding proposal.
[46] I have taken into account that the Preschool needs to have up to date policies and procedures to provide to parents and stakeholders upon request in order to maintain its operating license. I accept the evidence of Ms McRae that there were no policies on the laptop or hard drive when they were return by Ms Leys.
[47] I have taken into account that Ms Leys deleted the information off the laptop whilst she was stood down on full pay whilst the Preschool conducted the bullying investigation, which was well before the first show cause letter.
[48] The role of the Director of a Preschool in a small rural community is a very important one. Ms Leys had been the Director of Gunnedah Preschool for more than 20 years. She had been the author of its operating policies and the architect of its financial success. Ms Leys was well remunerated for her role. Ms Leys had built the Preschool to its current pre-eminent position in the local community and was very proud of its success. I have taken this into account.
Determination
[49] Based on the Federal Court decision in Baxter, I find that the Committee process in terminating Ms Leys and appointing Ms McRae as the Acting Director, was not undertaken in a manner which makes the decision null and void.
[50] I find that Ms Leys did not act in a manner which would warrant summary dismissal in relation to the allegations of breaching confidentiality or deliberately planning to delete the Preschool’s facebook page.
[51] I do not accept the evidence of Ms Leys that she only deleted irrelevant or personal information off the Preschool’s laptop computer. The conduct of Ms Leys in deleting necessary and relevant information was deliberate and calculated. Her actions placed the Preschool in an extremely difficult position in relation to being able to comply with its licensing requirements and its ability to apply for traditional and on-going funding.
[52] I find that Ms Leys acted in a wilful manner which was not consistent with the behaviour that is required from a senior and on-going employee. The actions of Ms Leys put at risk the viability, the operation and the profitability of the Preschool.
[53] I find that the conduct of Ms Leys in deleting information off the Preschool’s laptop computer and hard drive falls within the definition of serious misconduct under the Act.
[54] I find that the Preschool genuinely believed that Ms Leys’ conduct was serious enough to warrant summary dismissal. The Preschool conducted a lengthy investigation and provided Ms Leys with two show cause letters. The Preschool took advice from two IT specialists and advice from its legal advisors before reaching its final decision. The decision to terminate Ms Leys was based on reasonable grounds.
[55] For the above mentioned reasons, I find that the decision taken by the Preschool to terminate the employment of Ms Leys was consistent with the Code.
[56] Ms Leys application for an unfair dismissal remedy is dismissed.
COMMISSIONER
Appearances:
Ms L. Andelman, of Counsel, for the Applicant.
Mr O. Fagir, of Counsel, for the Respondent.
Hearing details:
Tamworth.
2016
27 & 28 April.
1 Exhibit L1 – Annexure E
2 Exhibit L1 – Annexure F
3 Exhibit L1 – Annexure G
4 Exhibit L1 – Annexure H
5 Exhibit L1 – Annexure I
6 [2015] FWCFB 5264
7 [2015] FCA 74
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