Mrs Georgia Pease v Mussoma Pty Ltd T/A Miami Beach Realty - [2021] FWC 6478

[2021] FWC 6478

FAIR WORK COMMISSION

DECISION

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

Mrs Georgia Pease
v
Mussoma Pty Ltd T/A Miami Beach Realty
(U2021/6996)

COMMISSIONER SPENCER

BRISBANE, 26 NOVEMBER 2021

Application for an unfair dismissal remedy – alleged serious misconduct – serious misconduct established – application dismissed.

INTRODUCTION

[1] Ms Georgia Pease (the Applicant) made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment (for serious misconduct) with Mussoma Pty Ltd T/A Miami Beach Realty (the Respondent) was harsh, unjust and unreasonable.

[2] The Respondent is a small family operated licenced real estate agency, comprising of two employees besides Mr Ron Brazier (the owner) and his son, Mr Brad Brazier (manager), they were Ms Kelly Ham (property manager) and the Applicant. The Applicant was initially engaged by Mr Ron Brazier as a licenced property assistant in October 2011, however following a Queensland Civil and Administration Tribunal (QCAT) ruling, that revoked her Registration Certificate shortly after her commencement with the Respondent, she was offered an administrative position. The Applicant’s license was removed following her failure to comply with the QCAT Order, after findings that the Applicant had improperly dealt with Bond monies. The employer, in summary terms, contended that the Applicant was disloyal in actively working against the interests of the business and would not comply with directions.

[3] The Applicant contended that her dismissal was harsh, unjust and unreasonable and sought payment of wages in compensation and her required notice period, and all statutory entitlements for accrued annual leave, leave loading and pro rata long service leave, pursuant to s.391 of the Act. The Applicant had been informed that an order for these other statutory entitlements was not within the jurisdiction of an unfair dismissal application.

[4] The matter was heard as a determinative conference on 16 November 2021. Ms Pease represented herself, and the Respondent was represented by Mr Brad Brazier, Manager for the Respondent.

BACKGROUND

[5] Following a disagreement with a direction given by Mr Brad Brazier on Friday, 23 July 2021, the Applicant was notified of her dismissal on Monday 26 July 2021, which was effective immediately. The Applicant maintained that she was not provided with any reasons for her dismissal and therefore was not given any opportunity to respond. The Respondent set out that the Applicant was terminated due to serious misconduct.

[6] In summary terms, the termination occurred following days of tension in the office. The preceding events are set out later in greater detail. On Friday 23 July 2021, the Applicant had a discussion with Mr Ron Brazier, JP Principal and Licencee. Mr R Brazier gave the Applicant a formal verbal warning that if she continued not to work in the team, then she would be dismissed. The Respondent’s evidence was that the Applicant replied with words to the effect, “Oh well I will just have to behave myself and do as I’m told”. The Respondent submitted that Mr R Brazier had intended to notify the Applicant of her termination, however due to his deteriorating “health situation” he gave her a warning and then attended the doctor’s surgery.

[7] The following Monday, 26 July 2021, the Applicant attended the Respondent’s office and was advised by Mr Brad Brazier that her employment was terminated. The Applicant was asked to hand in her office key and remote control for the gate. The Applicant alleged that the Respondent failed to answer her question, as to why she was terminated. No written correspondence was provided by the Respondent, confirming the termination of the Applicant’s employment.

[8] The Respondent however set out that the Applicant was aware of the deteriorating situation and the reasons that it was a small business and there had been a series of discussions with the Applicant. It was stated that the Applicant had repeatedly acted in a disloyal manner to the business and failed to follow lawful directions. The Applicant set out that she emailed Mrs Roberta “Bobby” Brazier (Mr Ron Brazier’s wife) on 26 July 2021 requesting payment in lieu of her 4-week notice period.

[9] The Applicant sent follow up emails on Monday 2 August 2021 and Thursday 19 August 2021 after receiving no reply from the Respondent. The Applicant had during her employment sent a series of emails to Mrs Brazier requesting loans to assist her with her mortgage payments. Mrs Brazier had assisted her on a number of occasions.

RELEVANT LEGISLATION

[10] Directions were set out for the parties to file evidence and submissions. The directions included s.387 and s.392.

[11] Relevant statutory provisions to the consideration of the matter are set out below:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[12] Further, ss.385, 386 and 387 of the Act relevantly provide as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

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

“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.”

[13] Section 388 of the Act sets out:

“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.”

[14] As to any remedy to be ordered, sections 390 and 392 of the Act provide:

“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.

Note: Division 5 deals with procedural matters such as applications for remedies.”

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.”

[15] Regulation 1.07 of the Fair Work Regulations 2009 provides the definition for serious misconduct, stating:

“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; or
(iv) sexual harassment;

(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.”

[16] The Small Business Fair Dismissal Code relevantly sets out:

“The 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.”

[17] Further, section 95 of the Industrial Relations Act 2016 sets out the long service leave entitlements for employees, stating:

“95 Entitlement—employees other than seasonal employees

(1) This section applies to an employee, other than a seasonal employee.

…

(3) An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the termination of the employee’s service.

(4) However, if the employee’s service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if—

(a)the employee’s service is terminated because of the employee’s death; or

(b)the employee terminates the service because of—

(i)the employee’s illness; or

(ii)a domestic or other pressing necessity; or

(c)the termination is because the employer—

(i)dismisses the employee because of the employee’s illness; or

(ii)dismisses the employee for another reason other than the employee’s conduct, capacity or performance; or

(iii)unfairly dismisses the employee; or

(d)the termination is because of the passing of time and—

(i)the employee had a reasonable expectation that the employment with the employer would continue until the employee had completed at least 10 years continuous service; and

(ii)the employee was prepared to continue the employment with the employer.

(5) Long service leave is exclusive of a public holiday that falls during the period of the leave.

(6) An employee who is entitled to long service leave other than under this Act is entitled to leave that is at least as favourable as the entitlement under this section.

(7) In this section—

illness includes injury, incapacity or other medical condition.

proportionate payment means a payment equal to the employee’s full pay for a period that represents the same proportion of 8.6667 weeks that the employee’s period of continuous service bears to 10 years.”

(emphasis added)

[18] The Applicant was dismissed for conduct, capacity or performance.

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

Submissions

[19] Given the Respondent terminated the Applicant’s employment for serious misconduct and no termination letter was provided to the Applicant, the order in the Directions for submissions was reversed, in order that the Applicant was aware of the case being brought against her. The Respondent submitted that there was a valid reason for the Applicant’s termination for serious misconduct, which included various instances of misconduct on behalf of the Applicant. In particular, the Respondent submitted that the Applicant failed to follow directions of management, unilaterally operated above her capacity or authority in the role she held and had a negative impact on her co-worker, Ms Kelly Ham.

[20] The Respondent was dismayed at the Applicant’s insubordination. The Respondent highlighted various other benefits that they provided to the Applicant during the course of her employment. For example, the Respondent (Mr Brad Brazier) arranged for the office property manager to provide the Applicant with a van at no charge, to assist her mother when she moved rental units.

[21] The Respondent submitted that the business lent the Applicant thousands of dollars during her employment which the Applicant never repaid. The Respondent provided copies of various emails exchanged between the Applicant and Mr B Brazier regarding the Applicant’s requests for financial assistance, including for assistance in paying her mortgage. The emails also document advice given by Ms R Brazier to assist the Applicant regarding budgeting and finances. The Applicant did not challenge this evidence.

[22] The Respondent further submitted that they became aware, by chance, that the Applicant had borrowed thousands of dollars from an elderly client, whose property they managed. The client had been a longstanding client of the business and the Respondent alleged that the Applicant never paid the woman back this money. The Applicant denied this. The Respondent’s evidence is that the landlord was aged in her late 80's, alone and vulnerable. The Respondent submitted that the Applicant took advantage of her, and did not disclose to the Employer the loan she had received from the Landlord.

[23] The Respondent also alleged that some tenants had advised that receipts were not issued for rent paid that the Applicant had taken from them. The Respondent acknowledged that this was a difficult issue to present, without witness evidence from these rental clients.

[24] The Respondent stated that in the weeks prior to the Applicant’s dismissal she continually disobeyed standard directions, that would be regarded as “common sense” amongst those in the real estate industry. This conduct was wilful and deliberate and brought the business in disrepute. The Respondent provided various examples of the Applicant’s blatant disregard for instructions as set out later in this decision.

[25] The Respondent alleged that due to such repeated conduct, the Applicant was “plotting against” the Respondent’s business by attempting to push out business to competitors. The Respondent submitted that the Applicant has a long history of seeking gifts/cash from companies for business and received a bottle of Moet champagne from a client prior to the settlement of his property by auction with another agent.

[26] The Respondent submitted that in the weeks after the Applicant’s dismissal, they had become aware of other examples of the Applicant’s misconduct, including the following:

(a) Mr B Brazier was advised by a landlord that the Applicant had been providing a Financial Year Statement at no charge, contrary to the terms of the Landlords agreement with the Respondent.

(b) Mr B Brazier discovered that the Applicant had failed to charge letting fees. Mr Brazier stated that the Applicant was aware of this, but chose not to disclose her mistake to her employer.

[27] The Respondent submitted that Mr R Brazier and Mr B Brazier had various discussions with the Applicant regarding her conduct and concerning attitude at work. Mr B Brazier stated that when confronted, the Applicant would “argue, deny or play dumb.” The Respondent provided various examples of the Applicant’s alleged poor attitude and disruptive nature in the workplace, including:

(a) On one occasion the Applicant attempted to “berate” Mr B Brazier in front of a former client and told him to go back to his desk.

(b) On another occasion the Applicant walked past Mr B Brazier’s desk whilst he was on the phone and said, “You're full of shit Brad”. In the weeks leading to the Applicant’s dismissal, Mr B Brazier had taken over management of the office as his father required time off work following an accident and he required hospitalisation for a back injury. According to the Respondent, the Applicant showed her contempt for Mr B Brazier, when she insulted him and told him that she did not see his name on official papers and therefore, he had no jurisdiction in the office.

(c) The Applicant would have a “creepy perv friend” come into reception daily, making everyone in the office uncomfortable. Mr B Brazier stated that on multiple occasions he gave the Applicant a clear instruction that this was not acceptable.

[28] Further, the Respondent submitted that the Applicant showed complete “disdain” to the family when Mr R Brazier was involved in a bicycle accident and his daughter, Ms Leeane Brazier rushed into the office concerned for Mr R Brazier’s welfare. Similarly, when Mr R Brazier suffered the recent serious back injury and was absent from the office for several months during his recovery, Mr B Brazier stated that the Applicant took advantage of the stressful period to “strike and upset the office in any way she could” including asking for money.

Evidence of Kelly Ham (from Q&A document)

[29] The evidence of Ms Kelly Ham (another employee) was provided by means of a question-and-answer document provided by the Respondent. The Applicant did not seek to cross examine Ms Ham during the proceedings.

[30] Ms Ham stated that her understanding was that the Applicant and Mr B Brazier were fighting due to the settlement of a Montana Road property.

[31] Ms Ham further provided that on 23 July 2021, there were arguments regarding a complaint from a Body Corporate. Ms Ham corroborated Mr B Brazier’s evidence that the Applicant left the office with cleaning supplies, after being told cleaning the spillage on common property area was not their job.

[32] The Applicant was critical of Ms Ham’s statement, indicating that it was given on the basis she suggested that Ms Ham did not want to lose her job. However, the Applicant did not seek to cross-examine Ms Ham to challenge the evidence at the hearing.

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

[33] The Applicant submitted that she was unfairly dismissed for serious misconduct and sought the payment of her 4 week notice period, including all entitlements for payment of unused holidays, leave loading and pro rata long service leave, pursuant to s.391 of the Act.

[34] The Applicant maintained that there was no valid reason for dismissal and that she was not notified of any reasons for the termination of her employment, despite asking her employer why she was dismissed. The Applicant therefore submitted that she was not given an opportunity to respond to any reason for dismissal.

[35] The Applicant denied that on engagement, she did not inform the Respondent that she was being investigated for misconduct arising from her former employment, when she commenced this employment. The Applicant’s evidence is that during her interview with the Respondent in October 2011, she advised the Respondent that her previous employer was put into liquidation, however she stated that she was only made aware of the investigation by the Office of Fair Trading four years later, in late 2015. At the time, the Applicant submitted that she told Mr R Brazier and B Brazier about the allegations of misappropriation of funds. The Applicant stated that the Respondent had agreed that she had been used as a “scapegoat” by her previous employer.

[36] The Applicant acknowledged that she had lost her Registration Certificate during her employment with the Respondent arising from the prior employment events, although she was adamant that this did not affect her work or performance. However, it is clear that the employer was required to change her position and could not then use her in the role required without a registration certificate.

[37] The Applicant acknowledged that she received additional payments from the Brazier Family Trust (BFI), although she alleged that these payments were made for tax purposes. No supporting information was provided for this argument. The Applicant denied that she started work late and that her children attended the office after school.

[38] The Applicant submitted that at no time during her time working for the Respondent was she advised that her employment was in jeopardy. The Applicant conceded that there were disagreements between workers, like in any other business, however she was never notified of any serious misconduct. At the hearing however, the Applicant was automatically dismissive of anything that Mr Brad Brazier set out.

[39] The Applicant admitted that Mr Robert “Bobby” Brazier had arranged to pay her mortgage in the amounts of $1488.73 and $1338.73 on two occasions. The Applicant said that she had stated that she would pay them back when she received the bonus payment from ‘BFI’ each year. The Applicant’s evidence is that she asked Mr R Brazier to take off the mortgage payments that the Respondent made on her behalf, although the Respondent refused as the BFI Account had to have a “nil balance” at the end of the financial year.

[40] It was clear that the employer had endeavoured to explain to her the implications of her responses and conduct in not following directions for a Real Estate Agency. At the hearing it was evident that the Applicant would not accept the employer’s reasons for the directions or that those discussions would reasonably have been taken by the Applicant, as warning of the employers continued frustration with her performance.

[41] The Applicant firmly denied any allegations regarding complaints from tenants that receipts were not issued for rent paid, that the Applicant had taken from them.

[42] Regarding the issue that the Applicant failed to charge letting fees, the Applicant admitted that one particular tenant ledger did not show that a letting fee had been charged. The Applicant disclosed this to Ms Kelly Ham and together they investigated why the fee had not been charged. The Applicant decided to advise the tenants that a let fee would be charged, although Ms Ham suggested that this wait until things with the business “settle down”. The Applicant did not confirm this with the Respondent in her evidence.

[43] In response to the Respondent’s submission regarding the Applicant’s loan from an elderly client, the Applicant submitted that Mr R Brazier was aware that the client had provided her with a loan and he would enquire monthly as to whether the Applicant was keeping up with repayments. The Applicant’s evidence is that she paid back the majority of the loan with the exception of $150. The Applicant submitted that the Respondent after losing the management of this client’s properties had nothing to do with her or her work performance, however there was no other explanation for this.

[44] The Applicant denied that she caused any trouble in the office stating that Mr R Brazier, Ms Ham and herself got on very well. The Applicant admitted that she had issues with Mr B Brazier, who took an “absolutely pathetic disdain” on her after she refused to continue doing his ironing. The Applicant stated that Mr B Brazier did not speak to her for some 6-12 months.

[45] The Applicant further denied that she overstepped her position and did indeed work under management direction.

[46] The Applicant stated that there were no issues between herself and Mr B Brazier until she refused to do his ironing in the office. The Applicant said she also often bought leftovers in for him to take home as she felt sorry for him, but over time became disgusted in how he spoke and treated people. Mr Brad Brazier denied this and pointed to the fundamental performance issues.

[47] The Applicant gave evidence that in the week before her dismissal, the office was a nightmare. She stated that Mr B Brazier would arrive and there would be arguments between himself and Mr R Brazier. The Applicant stated that often owners or tenants may drop in a card or a bottle of wine, and she wasn’t sure how this could be a bribe as put forward by the Respondent.

[48] The Applicant’s evidence was that if anyone called the office for ‘Bobby’, they were told by Mr R Brazier to say that she does not work in the office any longer, but would be happy to take a message to give to her.

SUMMARY OF THE RESPONDENT’S REPLY SUBMISSIONS AND EVIDENCE

[49] The Respondent provided submissions in reply, largely describing the Applicant’s submissions as being ‘inaccurate’ and ‘false’ accounts of the matter.

[50] Mr B Brazier submitted that the Applicant could use her discretion within limits, as to the time she would start work every morning. However, from November 2020 to July 2021, inclusive, the Applicant took full or part days off on nine occasions without authorisation.

[51] In terms of the Respondent’s further concerns with the Applicant’s duties, the Respondent submitted that the tenant making accusations about the Applicant providing financial statements without charge, was the same tenant who was not charged a letting fee. Mr B Brazier submitted that this deceitful conduct in not meeting business obligations formed a pattern with the Applicant that increasingly unsettled the owner, in relying on the Applicant.

[52] Mr B Brazier stated that he was never made aware that the Applicant had taken large amounts of cash from a client (name redacted). He stated that they only after being altered in embarrassing circumstances at an industry function and only found out the severity of such, by conducting their own investigations.

[53] Mr Brazier submitted that the termination occurred after there were times where he would have to reprimand the Applicant for using the office phone to call TV show competition lines.

[54] Further it was submitted that on Melbourne Cup day in 2019, the Respondent was not hosting a workplace event, as they would normally do. On that day in 2019, the Applicant left the office at 9:30AM without asking anyone to attend a Melbourne Cup event. The Respondent submitted that Mr R Brazier and Mr B Brazier continued to work until 1:30pm that day. In 2020, to avoid this happening again and to manage the Applicant, the Respondent returned to hosting the Melbourne Cup day event. It is submitted that the Applicant would often consume excessive amounts of alcohol at workplace events and needed to be closely monitored.

[55] The Respondent submitted that the Applicant chose to ignore repeated prior verbal warnings and clear instructions. As such, the warning issued on 23 July 2021 was not the first, or only warning issued to the Applicant, but a clear final step.

[56] The Respondent submitted that the Applicant’s employment was terminated after several warnings and on the grounds of her ‘pathetic actions and her toxic attitude cause harm to everyone trying to work’.

CONSIDERATION

Section 387 of the Act

[57] It is necessary in considering whether the dismissal is harsh, unjust or unreasonable, to have regard to the matters in s.387 of the Act:

s.387(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)

[58] In assessing whether there was a valid reason for the Applicant’s dismissal, the reason must be ‘sound, defensible or well founded.’ 1 A reason which is ‘capricious, fanciful, spiteful or prejudiced’ cannot be a valid reason.2 Furthermore, ‘[T]he reason for termination must be defensible or justifiable on an objective analysis of the relevant facts.’3

[59] The onus is on the Respondent, in the current matter, to discharge that the conduct provided a valid reason for dismissal. On the balance of probabilities, in accordance with the principle established in Briginshaw v Briginshaw, 4where it was considered, in the context of the conduct having occurred, that:

“The standard of proof remains the balance of probabilities but ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’ and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ …”

[60] The Applicant was dismissed following a number of incidents that the Respondent argued resulted from the Applicant wilfully ignoring a number of directions from Mr B Brazier. The Respondent set out that the business owner, Mr R Brazier, had been away from the business due to medical reasons in the period preceding the Applicant’s dismissal. The Respondent submitted that in what had been a demanding week for the business, the Applicant’s conduct was not acceptable. The Respondent had set out that continual explanations had been provided to the Applicant in order that she was clear on why things must be done.

[61] Whilst the Applicant bore the onus of proving that the dismissal was harsh, unjust or unreasonable, in cases of dismissal arising from alleged serious misconduct, the evidential onus of proof shifts from an Applicant to the Respondent. It is for the Respondent to prove whether the alleged conduct took place.

[62] Mr Brad Brazier had indicated that he had stated to the Applicant that they very much required her loyalty to ensure the business operated appropriately in the absence of Mr Ron Brazier. He had become particularly unsettled that the Applicant was not acting in the interests of the company. This requirement to support the business was conveyed to her in circumstances where she was disregarding his requests to work. It was clear from the exchanges, that the Applicant did not respect Mr Brad Brazier’s authority or his position as the senior employee of the company or affect the employer in Mr Ron Brazier’s absence. Mr Brad Brazier provided evidence of exchanges with the Applicant where the Applicant was dismissive of him and petulant towards him in front of clients.

[63] The Applicant’s non-compliant conduct was demonstrated in several events in which Mr Brazier gave clear responses to the Applicant that she did not follow the instructions and that such conduct had implications for the business requirements where regulations must be met.

[64] Further Mr Brad Brazier became increasingly concerned at the series of events whereby the Applicant was not only not following his directions, but he considered she was actually moving against the business and not acting in their interests.

[65] The Respondent argued that the Applicant’s conduct had created a ‘toxic’ workplace, and further submitted that as a small business, the harmony between colleagues is fundamental. The Employer considered from the Applicant’s behaviour, that she had become a ‘rogue’ employee, and that she was belligerent, and actively sought to undermine their authority, to the point where the continuation of her employment was untenable. During the Applicant’s evidence at the hearing, the Applicant was combative, argumentative and failed to recognise the source of the employer’s frustration with her conduct. The explanations that the employer had set out to the Applicant as to why her compliance was required were reasonable; taking into account the Real Estate Agency obligations, however she continued to dismiss them.

[66] The Respondent submitted that they had exercised continued generosity to the Applicant, above and beyond what was required within the employment relationship, and it was argued that this generosity demonstrated the employer’s goodwill towards the Applicant, and the desire to retain her in employment. However, the Applicant openly took advantage of the small office, particularly when Mr Ron Brazier was absent.

Loan from elderly client

[67] The Respondent set out that it had come to their attention whilst attending their lawyer’s office in relation to a separate matter, that allegations had been made that someone from the Respondent’s business had borrowed “thousands of dollars from an elderly client”. The Respondent stated that they were left shocked by this, and immediately sought clarification from the Applicant, (the only staff member not at the meeting with the lawyers) in relation to this allegation. The Respondent alleged that the Applicant had been deceptive in relation to this, in terms of asking their client and not advising the employer.

[68] The Applicant conceded that she had received a personal loan from one of the Respondent’s elderly clients, in the amount of $3000. The Respondent gave evidence that the client was aged in her late 80’s and had been a client of the Agency since 1987. The Respondent stated that the Applicant had not disclosed this loan to the Respondent, and they considered the conduct, at a minimum, significantly inappropriate, but in the context of her role in the agency, they considered that it left them exposed to the accusation that was occurring.

[69] The Applicant stated that she had repaid the loan to the client, however the Respondent expressed significant scepticism in response to this claim and given her earlier non-disclosure they could not be certain.

Cleaning of common areas

[70] On Friday, 23 July 2021 the Applicant was instructed by Mr B Brazier that the Respondent was not responsible for cleaning the common stairs of a complex (where they managed a unit) following a query she had received from another Property Manager. The Respondent’s evidence was that a tenant had made a complaint that alcohol had been spilt (and its odour was disturbing another tenant) in a common area of a property under their management. Their elderly tenant had allowed his grandson to stay in the unit. The tenant had not been able to be contacted in relation to the complaint, but did contact the Realty sometime later to indicate that his son’s friend had spilt red wine in the common area.

[71] Mr Brad Brazier becoming aware of the situation had indicated to the Applicant that it was not their role to clean common areas in properties and it was for the tenant to clean the area or to get a cleaner to do so.

[72] The Respondent gave evidence that Mr B Brazier had specifically instructed the Applicant not to clean the spillage, and advised her that it was the responsibility of the tenant who made the mess to clean it up. The Respondent stated that the Applicant ignored the instructions, and went to the upper floor of the Respondent’s office to get cleaning supplies. When she came down with the cleaning products, Mr B Brazier again told the Applicant that they are not responsible to clean the common area. Mr B Brazier stated that the Applicant yelled at him in response, ignored his instructions and left the office for approximately one hour to clean the common area.

[73] The Respondent argued that the Applicant’s conduct undermined their authority and compromised the reputation of the business, as they were seen to be undertaking work that was not their responsibility. Mr B Brazier gave evidence that it was the intention of the Respondent to hold the tenant who had caused the mess responsible and take the necessary action to ensure they cleaned the mess up, and if appropriate, record disciplinary action against the tenant. The Respondent argued that the Applicant had left her office duties and ignored the direction, in cleaning the mess up. The Respondent submitted that this action, effectively condoned the tenant’s poor behaviour.

[74] The Applicant, in her evidence was argumentative in response to Mr B Brazier’s direction not to clean the mess, but conceded that she did not follow this direction, and instead left the Respondent’s office and proceeded to clean the mess using the Respondent’s cleaning equipment. The Applicant was dismissive when giving her evidence in relation to this event. She argued that she was only assisting other tenants in response to the complaint. She was reminded that she held no responsibility to the other tenants, managed by the other realtors. Further, that she was being paid to undertake duties in the office.

Dishwasher dispute and pre-settlement inspection

[75] The Respondent submitted that a significant event leading to the Applicant’s dismissal, was her repeated failure to follow directions. This further incident was in (reflective of this continued conduct on her part) relation to a pre-settlement inspection of a property, in the weeks preceding her dismissal.

[76] Mr Brad Brazier became quite concerned when one of the property’s which they had managed in their rental roll for some time; the client owner chose another agency to sell their house. The name of the client and the details of the property were provided. He indicated that the Applicant had not provided a phone message from the client to him directly, but had left it on a ‘post it note’ causing significant delay over a long weekend, before the client’s call was returned. The client was dissatisfied with this. Mr Brazier considered this was one of the reasons why this client went to another agency. However, he was also concerned when the same client brought in champagne for the Applicant and Ms Ham. The Applicant maintained that it was for their work in managing the client’s property. However, Mr Brad Brazier said he became further concerned with the Applicant’s conduct, which he considered was duplicitous, when he heard her arranging for the buyer of that property, who had bought the property at auction, to attend the property at the same time that the Applicant was undertaking a bond inspection with their tenant. Mr Brazier indicated to her not to allow the buyer to attend the property, as their agency was not to be engaged in a settlement inspection that was not their role, as they had not sold the property. Furthermore, when the Applicant started to call glaziers for a quote on a broken window to be fixed by their tenant, he said this was unwarranted, he indicated to her that when a buyer buys the property at auction, it is bought as is, and he did not want their agency to become involved. It was for the Agency that was selling the house to record items on the auction document.

[77] The Applicant allowed the property owner into the property and she queried a cracked window and a dishwasher as to whether it was part of the sale. A dispute emerged over these issues. The Respondent had explained the potential for this to occur that they did not want to be included or have any exposure as they were not the selling agent. It was up the agent to indicate on the form for the sale of the property if any chattels, for example whether a dishwasher, had been included. They reinforced with the Applicant that she was not acting in her employer’s interest.

[78] However, again the Applicant disregarded Mr Brad Brazier’s instruction and sought glazier quotes for fixing the cracked window. According to Mr B Brazier, the Applicant accessed photos on the Respondent’s system and emailed them to the former client despite direct instructions not to do so. The Respondent submitted that the dispute over the dishwasher and cracked window did not fall within their scope of responsibility, and as such the Respondent was under no obligation to assist with these inquiries. The Respondent’s evidence was that this had been communicated to the Applicant, and despite the direction for her to not involve herself in the dispute, the Applicant had ignored the instruction and proceeded to obtain quotes for the repair of the items. The Applicant stated that she considered that the cracked window had arisen as a result of their client’s tenancy and in order to achieve the bond inspection, she was obtaining quotes for the glazier. However again Mr Brad Brazier explained to her that she could unnecessarily expose their tenant and business to a dispute in circumstances where the buyer had bought the house ‘as is’ at auction. There was no requirement to fix those items, when the selling agent had not required such repairs for the sale, which had overtaken the tenancy.

[79] Mr Brad Brazier described the situation as unprofessional, particularly when the Agent that sold the property (came to their agency to collect the property’s keys) and Mr Brad Brazier commented to the agent ‘I have never seen an agency that was not involved in the sale undertake the pre-settlement inspection.’ Mr Brad Brazier stated that the agent had a smirk on his face and indicated no he had never seen that done either.

[80] Further, in relation to the same property, Mr B Brazier submitted, prior to the above, that on 16 July 2021, he had spoken to the buyer (name redacted) of that property, which was the only occasion they had spoken. During this conversation Mr B Brazier advised the buyer that she would need to arrange the pre settlement inspection with her selling agent. He said she accepted this. Mr Brad Brazier had advised the Applicant that the realtor who had auctioned the house was to undertake the pre-settlement inspection, with the buyer and that their agency must not get involved.

[81] On Monday 19 July 2021, the Applicant conducted a pre-settlement inspection despite being given explicit instructions on Friday 16 July 2021 that this was not to occur as the Respondent was not the selling agent. The Respondent maintained that this was a serious concern to the business, as the pre-settlement inspection is always undertaken by the by selling agent. Mr B Brazier gave evidence that this resulted in significant embarrassment to the Respondent, which was compounded when the seller’s agent attended the Respondent’s office to collect the associated paperwork.

[82] The Applicant gave evidence that Mr B Brazier was rude to the seller’s agent on this occasion, however as explained above, Mr B Brazier in his evidence, contended that the agent had rightfully made comments to the effect that the Respondent had done the agent’s job for him, and that he commented on how that had never occurred before. Mr B Brazier stated that the Applicant’s conduct in undertaking this inspection was entirely inappropriate and unprofessional, and caused the Respondent’s business embarrassment and reputational damage.

[83] The Applicant, in her evidence before the Commission, was dismissive of Mr B Brazier’s explanation of the business reasoning behind his direction for her not to undertake the pre-settlement inspection. The Applicant was hostile in her responses and exhibited disregard for Mr B Brazier’s authority and the explained reasons. The Applicant failed to acknowledge that her conduct was in complete opposition to Mr B Brazier’s direction to her.

Dismissive attitude

[84] The Respondent gave evidence that the Applicant, in response to the final disciplinary meeting on the Friday prior to her dismissal, had similarly made the indifferent comment in response that “I’ll just have to do what I’m told now”. The Applicant did not deny making this comment. This comment is considered at a minimum, inappropriate and disingenuous. The comment is reflective of the Applicant’s dismissive response to the employer having raised serious concerns in regards to the Applicant’s failure to follow direction, or to commit to comply with the employer’s requirements.

Serious misconduct

[85] Fair Work Regulation 1.07 defines ‘serious misconduct’ as conduct that is wilful or deliberate and that is inconsistent with the continuation of the employment contract. 5 It is also conduct in this case, that causes serious and imminent risk to the reputation, viability or profitability of the employer’s business.6

[86] Serious misconduct includes the refusal to carry out lawful and reasonable instructions consistent with the employment contract. 7

[87] Where ‘serious misconduct’ is alleged the test for a valid reason for dismissal does not change. The test remains whether the reason was ‘sound, defensible or well founded’. 8 However a valid reason for dismissal does not require conduct amounting to a repudiation of the contract of employment,9 but conduct that makes continuing employment during the notice period as untenable.

[88] There was a valid reason for the dismissal, as the Applicant had not complied with lawful directions and exhibited serious dismissive responses to the employers explanations as to why they required her to desist with particular conduct or to be compliant with Mr Brad Brazier‘s instructions to her. This was in particular at a time in the business when Mr Ron Brazier had been hospitalised with a back injury and his mobility was affected and the family were particularly concerned for his health. Her failure to discharge her duties added to the burden of the employer.

[89] The Applicant’s conduct, overall, provided a valid reason for the dismissal. I am also satisfied that taking into account all of the circumstances, that the conduct in which the Applicant engaged provided a sound basis for summary dismissal of the Applicant’s employment. She was not acting in support of the employer.

[90] The Respondent on the matters presented, had a valid reason for terminating the Applicant’s employment; (overstepping the authority of her role, failing to follow reasonable directions, causing breakdown of the work relationship between herself and Mr B Brazier). The series of matters set out above demonstrated a pattern of insubordinate behaviour from the Applicant that, in aggregate, meets the threshold of serious misconduct, warranting summary dismissal.

[91] When considered against the criteria set out in Regulation 1.07, the conduct is considered clearly inconsistent with the ongoing employment relationship and presents an imminent risk to the viability, profitability and reputation of the Respondent’s business.

[92] The finding that there was a valid reason for the Applicant’s dismissal weighs in favour of a conclusion that the dismissal was not unfair.

(b) whether the person was notified of that reason

[93] The Applicant maintained that she was not notified of any reasons for her termination, despite asking her employer why she was dismissed. She was provided with a “warning” the Friday before and that she was being required to work as part of the business’ team. The Applicant did not commit to such in a genuine manner. This left the employer dissatisfied and concerned that she could not be trusted.

[94] The Respondent submitted that they held a series of discussions with the Applicant regarding her performance and poor attitude. The Respondent’s evidence set out that a number of discussions were held with the Applicant, where specific concerns regarding her performance and lack of compliance with directions were addressed. It should have been apparent to the Applicant that the Respondent was dissatisfied with her performance and consistent lack of compliance with directions. A reasonable employee should have known, from the series of discussions, and listening to the employer’s concerns, that the employment relationship was in jeopardy

[95] The Respondent was a small employer with 2 employees (including the Applicant) working in the office. In accordance with the Small Business Fair Dismissal Code, a dismissal can be communicated orally, without written notice, in circumstances where the employee is being dismissed for serious misconduct. 10 The Respondent had endeavoured to explain their position and requirements at every step until they were completely frustrated with the Applicant to the point of distrust for her. This matter weighs in favour of the Respondent given their repeated explanations in response to her conduct.

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

[96] The Applicant was summarily dismissed for serious misconduct. She was not provided with written reasons for her dismissal, nor given an opportunity to respond to the reasons for dismissal. However, as detailed earlier, the Respondent had engaged in a series of discussions with the Applicant, in relation to her conduct in the period preceding her dismissal. After being given a warning on the prior Friday she would have known her employment was in jeopardy, and the response for such. The Applicant was glib in her response to the employer.

[97] The Applicant was provided with a series of prior opportunities to address the conduct that resulted in her dismissal. The Respondent had engaged with the Applicant in discussing the conduct and setting out the employer’s concerns with the conduct. A reasonable employee would have taken these discussions seriously, and recognised that the employer was dissatisfied with the conduct questioned her allegiance to the business and required an improvement in order that the employment relationship could be maintained. Matters of trust and confidence in the Real Estate Industry are paramount. Particularly, in positions like the Applicant’s where she was in a front facing position with clients and generating and referring leads. Absolute trust is required.

(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

[98] The Respondent submitted that the Applicant did not request a support person. No formal meeting advising the Applicant of her termination was arranged. The Respondent was a small business with two employees (besides the owner and manager) and was trying to manage the situation with the Applicant as it unfolded. Given the series of prior discussions with the Applicant, where she was able to respond, there was not a denial of procedural fairness.

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

[99] The Respondent’s actions aligned with the Code requirements for a small business. The working relationship with the Applicant was at arm’s length, given the close working environment, the small business matters were dealt with immediately in discussions. Mr B Brazier and Mr R Brazier referred to a series of discussions with the Applicant to indicate their difficulties with her lack of compliance with directions from the employer, and her insubordination to Mr B Brazier.

[100] During the hearing the Applicant showed how dismissive and combative she was in response to questioning regarding the Respondent’s directions. The evidence of Mr Ron Brazier and his son Mr Brad Brazier was that they had both had numerous discussions with the Applicant over a long period, and that the Applicant was aware that her conduct was causing a difficulty with the employer. It was evident at the hearing that the Applicant failed to acknowledge their efforts.

(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

[101] The Respondent was a small business and had two employees and no dedicated human resources management or industrial relations expertise. The Commission has taken this into account. The Employer process set out in the Small Business Fair Dismissal Code was not strictly complied with. However, the employer’s evidence was persuasive that relevant disciplinary discussions had been repeatedly held with the Applicant. Whilst it is recognised that the Respondent was a small business employer and there was an absence of relevant expertise, this must also be weighed against the finding that the Applicant’s conduct amounted to serious misconduct, and warranted summary dismissal. The Respondent had lost the required trust and confidence in the Applicant performing her role.

(h) any other matters that the FWC considers relevant

[102] It is recognised that the Applicant was a long-term employee of the Respondent, with just short of 10 years service. The Applicant was summarily dismissed for serious misconduct, as the Respondent reached a point, after the Applicant significantly acted against their directions and business interests, and they considered the employment relationship could not continue.

[103] It is noted that at the time of the dismissal, Mr R Brazier had been absent from the workplace, recovering from a serious back injury. It was clear that the Applicant deferred to Mr R Brazier given he was senior, the owner and had employed her. However, there was tension between the Applicant and Mr B Brazier, who was endeavouring to manage the business in his father’s temporary absence. Mr B Brazier was clearly in authority. It was a time in the business that the Respondent stated they required the Applicant’s loyalty and assistance to run the business and that they did not receive it from the Applicant. The Respondent stated that during this period the Applicant was disruptive in the business and destructive to the employment relationship with Mr B Brazier. This conduct followed prior deceptive conduct.

[104] The Respondent also noted the situation emerged after they had shown real support and generosity towards the Applicant. The Respondent noted that the Applicant had been allowed to regularly shop during business hours when it was quiet, and at times she arrived late for work and took breaks at any time, often attending to personal business affairs or her personal Facebook account during work. The Respondent had submitted that in the weeks leading up to the Applicant’s dismissal, she had a personal associate lingering at the workplace, on an almost daily basis. Mr Brad Brazier stated he had had cause to further speak to the Applicant when a man he described as ’creepy ‘and ‘pervy’ continually dropped into the office to spend lengthy periods talking and laughing with the Applicant, near reception. The Applicant conceded that this acquaintance regularly attended the workplace, however she maintained that he ceased attending the workplace following a conversation with Mr Brad Brazier where he requested that the acquaintance no longer attend the workplace.

Personal loans and additional payments

[105] The Applicant over the course of her employment had sought a number of personal loans from the employer, to assist her to pay her mortgage. The employer had paid her a series of mortgage instalments and assisted the Applicant in undertaking an annual budget and financial plan for expenses. None of the money loaned to her was repaid.

[106] The Respondent provided evidence that in the 2021 financial year, they had also made two payments to the Applicant in the amount of $3000, by way of a discretionary bonus payment, in circumstances where there was no such obligation to make these payments. This $6000 was in addition to her salary, and described by the Respondent as a gift to the Applicant. The Respondent stated that the bonus payment to the Applicant had been made each year for the 5 years preceding her dismissal. The Applicant stated at the hearing that she had thought that the most recent payment had been paid as a Jobkeeper payment, however the Respondent correctly identified that Jobkeeper was available for a brief period as part of normal wages, and that she knew this does not account for the history of these “bonus” payments, and the Applicant did concede that she was in receipt of the prior bonus payments.

[107] Further, the Respondent gave evidence that they had provided personal loans to the Applicant on a number of occasions. Email requests for these loans were tendered by the Respondent. It is evident from the emails that the Respondent acted generously and well beyond what was required in the employment relationship by making several direct payments on the Applicant’s mortgage on short notice, as well as offering her financial guidance and assisting her in managing her finances. The evidence was that the Applicant did not repay the loans.

Provision of work vehicle

[108] The Respondent also indicated that they had supported the Applicant by providing a car for her, which they stated she had damaged, and they then paid for the car to be repaired and also accommodated the expense of a number of speeding fines for her. None of these car related matters were challenged by the Applicant. The Respondent’s conduct indicated that this was an employer that only moved to terminate the Applicant’s employment when her conduct was considered as increasingly disingenuous by the employer.

QCAT

[109] The Applicant was originally employed as a licensed property assistant by Mr R Brazier, the Principal of the Agency. Shortly after the Applicant was employed, the Respondent became aware that, she and her former employer (also a real estate agent), were being investigated by the Office of Fair Trading for misconduct. The Respondent’s evidence was that the Applicant did not disclose this information at the time of her interview or employment.

[110] Following the investigation, proceedings were commenced in the Queensland Civil and Administrative Tribunal (QCAT) by the Chief Executive, Department of Justice and Attorney General (Chief Executive), regarding disciplinary action against the Applicant. QCAT determined that the Applicant acted in an unprofessional way.

[111] QCAT found in a decision of 4 March 2016, that on 10 occasions between 4 July 2010 and 29 May 2011, the Applicant failed to deal with bond money (a total of $16,000 paid in cash by tenants) properly as she did not pay such into the trust account, formally receipt or remit the bond money to the Residential Tenancies Authority (RTA). Instead, the Applicant gave the tenants non-trust account receipts and kept a copy of the tenants file together with a bond lodgement form.

[112] In the QCAT decision, (tendered by the Respondent) it was held that the Applicant should be reprimanded and ordered her to pay compensation of $8,100 to the Chief Executive, in monthly instalments of $150. The Applicant was made aware that if any instalment was not made on time, then she would be disqualified from holding a licence or registration.

[113] The Applicant failed to comply with the Orders from QCAT, and her certificate to conduct property management was subsequently revoked. The Applicant was disqualified from holding a license or registration certificate under the Property Occupations Act 2014 (Qld).

[114] Having employed the Applicant with the relevant license and qualifications to perform a property management role, and given the findings made against the Applicant, the Employer would have had a basis on which to dismiss the Applicant. However, despite this disqualification, the Respondent assisted the Applicant, by allowing her to continue working as a receptionist in the business, on the same salary and “perks” that she was previously receiving in her role. This included providing extra private “goodwill” bonus payments twice a year, in addition to car/fuel and flexible working conditions to allow her to care for her children and mother.

Post dismissal conduct

[115] The Respondent gave evidence that, (whilst not relied upon to effect the dismissal), a series of events was uncovered following the Applicant’s dismissal, which attested to the pattern of inappropriate conduct undertaken by the Applicant in the months preceding her dismissal.

[116] This conduct included Mr B Brazier being advised by a landlord that the Applicant had been providing a Financial Year Statement at no charge, contrary to the terms of the Landlords agreement with the Respondent. Mr B Brazier’s evidence was that this came as a surprise to him, upon learning of this conduct during a phone call with a landlord, whom had called the agency, upset and agitated that he was now being charged for a service that the Applicant had previously provided without charge. Mr B Brazier stated that he was apologetic to the client, however he reiterated to the client that the Applicant was never authorised to not charge the client for that particular work.

[117] Mr B Brazier also discovered that the Applicant had failed to charge letting fees. Mr Brazier stated that the Applicant was aware of this, but chose not to disclose her mistake to her employer.

[118] The Applicant stated that she was surprised by the termination of employment and she alleged that Mr B Brazier had been critical of the Applicant’s work performance since she indicated she was not able to continue to do Mr B Brazier’s ironing at work. The Respondent dismissed this and pointed to the evidence that the Applicant engaged in conduct that was not consistent with the instructions that she was given, and did not comply with the work that she was required to undertake.

[119] As set out, there were several incidents that gave rise to the termination, in circumstances where the Respondent business was operating without Mr Ron Brazier, as he had been subject to a severe back injury that caused him to be unable to operate for a period. He was hospitalised as a result of this injury. The employer considered that during this period the Applicant would have assisted the business.

[120] The Respondent on a number of occasions, had acted above and beyond of what was required from the employment relationship in order to assist and accommodate the Applicant in her employment. It is clear that the Respondent was accommodating and generous. It was also clear that the Respondent could no longer have confidence that the Applicant was acting in the Employer’s interests. This had to be considered against the post conduct as well.

CONCLUSION

[121] It is determined that there was a valid reason for the Applicant’s dismissal and the procedure undertaken in the circumstances by the smaller business employer was appropriate. Accordingly, it is not necessary to make a finding in relation to remedy.

[122] It is determined that the Applicant’s dismissal was not unfair. Her conduct demonstrated a repudiation of the trust and confidence required by the employer and supported a finding of serious misconduct, warranting summary dismissal in the circumstances.

[123] On this basis, pursuant to s.392 the application for unfair dismissal is dismissed.

[124] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373].

2 Ibid.

3 Rode v Burwood Mitsubishi Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999) at [19].

4 (1938) 60 CLR 336.

5 R.1.07 (2)(a), Fair Work Regulations.

6 R.1.07 (2)(b), Fair Work Regulations.

7 R.1.07 (3), Fair Work Regulations.

8 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.

9 Annetta v Ansett Australia Ltd Print S6824.

10 Plaksa v Rail Corporation NSW[2007] AIRC 333 (Cartwright SDP, 26 April 2007) at para. 8; citing Barolo v Centra Hotel Melbourne Print Q9605 (AIRC, Whelan C, 10 December 1998).