Mrs Lyn McPartland v Degree Refrigeration Pty Ltd T/A Weston Family Trust
[2016] FWC 4984
•5 AUGUST 2016
| [2016] FWC 4984 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Lyn McPartland
v
Degree Refrigeration Pty Ltd T/A Weston Family Trust
(U2016/5390)
COMMISSIONER HUNT | BRISBANE, 5 AUGUST 2016 |
Application for relief from unfair dismissal – where performance issues did not amount to valid reason for dismissal – lack of procedural fairness – dismissal unfair – reinstatement appropriate remedy
[1] Mrs Lyn McPartland applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to her dismissal by Degree Refrigeration Pty Ltd T/A Weston Family Trust (Degree Refrigeration). Degree Refrigeration provides refrigeration, air conditioning and electrical services to the commercial, industrial and food services industries.
[2] Mrs McPartland commenced casual employment with Degree Refrigeration on 29 November 2011 as an Administrations Officer. The duties required of Mrs McPartland were initially filing, however these increased to include purchase orders, creating work orders, site inductions, liaising with technicians for dispatching of jobs using the relevant computer system, ordering spare parts, MYOB duties and debt collection.
[3] In May 2013, Mrs McPartland was offered and accepted permanent employment.
Procedural issues to arbitration
[4] An Order requiring the production of documents to the Fair Work Commission (the Commission) was made on 3 June 2016. A number of documents required to be produced were provided by Degree Refrigeration to the Commission. Where documents were not produced, it was claimed by Degree Refrigeration that they did not exist.
[5] A 10 page witness statement signed by Mrs Sian Weston, Director of Degree Refrigeration was filed in the Commission and served on Mrs McPartland. The witness statement was made in the name of both Mr Peter Weston and Mrs Sian Weston, yet signed by Mrs Weston.
[6] The statement was not made in the first person. Directions were issued to Degree Refrigeration on 8 June 2016 to resubmit the joint witness statement in the form of an individual statement or statements. Guidance information was provided on how to make written statements to the Commission for the purposes of giving evidence.
[7] Degree Refrigeration did not file any further material. The directions to file individual witness statement(s) was not complied with.
[8] At the hearing on 24 June 2016, Mrs McPartland was represented by Mr Arthur, Solicitor of Mooloolaba Law. Leave was granted in accordance with s.596 of the Act for Mr Arthur to appear.
[9] Degree Refrigeration did not appear at the hearing, nor were they represented. Numerous attempts to contact Degree Refrigeration and directors of the company were made, without success.
[10] After determining that representatives for Degree Refrigeration were not contactable, I commenced hearing the application in the absence of representatives of Degree Refrigeration. I informed Mr Arthur that the hearing would precede, and all attempts following the hearing would be made to learn from representatives of Degree Refrigeration their position.
Evidence of Mrs McPartland
[11] Mrs McPartland’s evidence is that when she commenced with Degree Refrigeration it was a reasonably small business with approximately 10 employees, including 6 technicians. Mrs McPartland worked closely with Mr and Mrs Weston, together with Ms Sue Ruming, the mother of Mrs Weston.
[12] The company serviced and repaired refrigerators and electrical componentry for Coca-Cola Amatil, McDonalds, Hungry Jacks, Puma equipment and some medical practices.
[13] Mrs McPartland considered that she had a close relationship with Ms Ruming, sharing personal and work-related problems. She described the office as ‘close-knit’.
[14] By late 2012, Mrs Weston was also sharing with Mrs McPartland work and personal problems; the stresses of running a business and caring for small children.
[15] After a downturn in business, the work increased significantly in mid-2014. Mrs Weston performed invoicing, payroll and HR duties, while Ms Ruming and Mrs McPartland performed administrative functions.
[16] Around this time, a related company began performing refrigeration work for a large number of Woolworths’ stores.
[17] Ms Carli Breeze was employed by Degree Refrigeration as an administration assistant as the workplace had become very busy. Ms Breeze was later promoted to Office Manager.
[18] Mrs McPartland’s evidence is that Ms Breeze informed her that the most important work required of Mrs McPartland was the checking of the retail work orders ready for invoicing. Mrs McPartland attended Mrs Weston’s home in early 2015 and said to her that she was unable to do the work that Ms Breeze required of her, together with all of the other work that was ordinarily expected of her.
[19] Mrs McPartland was then relieved of some of the administrative work, allowing her to focus on the retail work orders for invoicing.
[20] In March 2015, the business had grown to approximately 40 technicians and 9 office staff. Degree Refrigeration moved to larger premises. Mr and Mrs Weston moved house at around this time, and Mrs Weston moved her office to her home address.
[21] In July 2015, there was a change of computer and accounting systems. Mrs McPartland was on annual leave at the time the new systems were introduced. She missed out on training on the new systems, and on her return contends that she was rebuffed by Ms Breeze when she requested training.
[22] On or around September 2015, Mrs McPartland recalls that she attended a meeting with Mrs Weston and Ms Breeze. Mrs Weston said to her words to the effect, “Your problems and being upset all of the time is bringing the staff down.” Mrs McPartland states that she did not realise that sharing her problems at work from time-to-time was upsetting other people, but she would take the advice on board.
[23] Mrs Weston is said to have stated that there would be a number of office employees dismissed in November 2015, and she had not decided yet who would be dismissed. Mrs McPartland contends that she replied that if she was being considered as one of the employees to be dismissed, it did not help that she was not being trained in the new systems.
[24] In August 2015, Mrs McPartland attended a meeting with Mr Weston and Mr Kyle Murphy, Business Manager. Mrs McPartland was informed that she was no longer to contact the nominated manager of Coca-Cola Amatil as he had complained about her. Mrs McPartland asked, “Is this to do with the email I sent about faults at various sites?” Mr Murphy responded, “It doesn’t matter why, Lyn. If a client makes this request we must uphold their request.”
[25] In around December 2015, Mrs McPartland met with Mr Weston and Mr Murphy. Mrs McPartland contends that the meeting was held in relation to issues that a number of staff were having with Ms Breeze. Mrs McPartland contends that Mr Weston informed her that regrettably there was no time to train her in the new systems, and she would be responsible for answering the telephones as the business from Adelaide and NSW was increasing significantly.
[26] Mr Murphy informed Mrs McPartland that he would provide for her use a script when answering the calls. At the end of the meeting, Mr Murphy approached Mrs McPartland, gave her a hug and said, “We love you here Lyn and we don’t want to lose you.” Mrs McPartland contends that it was a positive meeting.
[27] By January 2016, Degree Refrigeration was split into two divisions; Administration and Operations. Mrs McPartland was informed at this time that her new duties were to conduct site inductions for the 7Eleven work that the business was doing, together with McDonald’s sites, the work she had earlier been doing for Woolworths’ stores, and checking supplier statements.
[28] Mrs McPartland received an email from Mrs Weston in early February 2016 stating words to the effect, “Well done. This Puma Work order is completely correct.”
[29] On 18 February 2016, Mrs McPartland was not feeling well while at work. Ms Breeze and Ms Ruming told her to go home. Mrs McPartland was reluctant to leave the workplace as the office was incredibly busy. She eventually left the workplace and visited her doctor. She did not attend work on the Friday, and returned to work on Monday, 22 February 2016.
[30] On her return to work, Mrs McPartland handed her medical certificate to Ms Breeze. Mr Luke Taylor, Supervisor informed her that she needed to go into the conference room immediately to meet with Mr Weston.
[31] Mr Weston and Mr Taylor met with Mrs McPartland. Mr Weston informed her that her employment was terminated effective ‘the end of business today.’ Mrs McPartland describes that she was in shock.
[32] She inquired if it was because she had taken sick leave, and was informed no, it was for numerous issues. A termination letter was handed to her. The letter is dated 22 February 2016 and states:
“Dear Lyn McPartland,
I Peter Weston, Director of Degree Refrigeration he by terminate your employment with Degree Refrigeration. This decision is based with on-going issues within the business and yourself, multiple factors which you have been advised in the previous meetings. This decision has not been made lightly and we feel your employment with Degree is untenable moving forward.
Kind Regards,
Peter Weston Managing Director”
[33] Mrs McPartland contends that she returned to her desk. All office staff were shocked at the news of her termination, including Ms Breeze. Ms Ruming said to her, “I am so sorry, Lyn.”
[34] Mrs McPartland went to her car, however she realised that she would require a separation certificate in order to go to Centrelink. She returned to the office and asked Mr Weston for the certificate. Mr Weston replied that he would attend to this on his way to a meeting that day.
[35] There were a number of issues with the termination payments made to Mrs McPartland, and this resulted in delays in meeting with various organisations to assist Mrs McPartland to undertake work searches.
[36] Approximately one week following her dismissal, Mrs McPartland saw an advertisement posted on Seek by Degree Refrigeration. The role advertised was for an office junior.
Evidence of Degree Refrigeration
[37] Due to the non-attendance at the hearing by representatives of Degree Refrigeration, the information before the Commission is limited to the F3 – Employer’s Response, the joint statement of Mr and Mrs Weston, together with a signed statement of Ms Ruming.
[38] Representatives of Degree Refrigeration were not available for cross-examination.
[39] I informed Mrs McPartland during the hearing that the documents filed by Degree Refrigeration would not carry the same weight as evidence before the Commission. The responses put by Degree Refrigeration were used by me to ask Mrs McPartland questions. I repeat in this decision that the material put by Degree Refrigeration does not carry the weight of evidence; however I have had regard to it and attributed the relevant weight to it.
[40] Where I refer below to the joint statement of Mr and Mrs Weston, I shall call it the ‘statement’. Written submissions were also filed.
[41] It is contended within the statement that where Mrs McPartland received wage increases during her employment, it was not for exemplary performance, and any increases were award wage increases.
[42] Mrs McPartland’s duties were also performed by all office staff, excluding Mrs Weston who concentrated on invoicing, payroll and bill paying.
[43] When the new computer and accounting systems were introduced, Mrs McPartland was on annual leave. It is contended that Mrs McPartland was adequately skilled to perform a large number of tasks involving these systems by the time her employment was terminated.
[44] With respect to the new accounting system, Mrs McPartland was provided with limited access to help with reconciliation of accounts payable.
[45] It is contended that after Mrs McPartland undertook some training, she said to Ms Breeze, “I don’t feel comfortable doing that.” When she was asked to do debt collection, she indicated that she was very competent, however after a week performing these duties she approached Ms Breeze to advise that it was too stressful.
[46] Degree Refrigeration filed copies of text messages sent between Mrs Weston and Ms Breeze. On 28 August 2015, the two women exchanged the following messages:
Ms Breeze: Ok, Ive spoken to Lyn & passed on the chasing of the invoices & said if its too stressful to give back to me. I explained that there was no need to raise her voice or speak to the lady at hosp equip the way she did, I said she is still our customer. She is all good with that
Mrs Weston: She told me last week she loved debt collecting and she was said she only had 1 to chase?
Ms Breeze: the way she spoke to her thou Sian its not on
Mrs Weston: Wow, what happened?
Ms Breeze: She said she loved it to me 2, but is not right to talk to people so rude & yell
You know what she’s like..
Mrs Weston: Ok so it seeming we can’t get her to do much?
[47] Degree Refrigeration contends that as the business grew and changes were required, Mrs McPartland was often negative and engaged in counterproductive actions such as failing to follow the implemented process even after being shown how to do the work. The statement contends that all necessary assistance was afforded to Mrs McPartland if she showed a particular interest in certain tasks and duties.
[48] The statement contends that Mrs McPartland was unable to separate her work and personal life, and shared private information in the workplace. This is said to have affected other employees in the office.
[49] In August 2015, Degree Refrigeration was contacted by a manager at Coca-Cola Amatil, requesting that Mrs McPartland no longer correspond with the Coca-Cola manager. It was reported that Mrs McPartland was putting strain on the customer contact; her phone demeanour and incessant telephone and email communication with the manager and his peers was reported to Degree Refrigeration as seemingly logical and unnecessary questions. It was alleged that the customer found Mrs McPartland ‘aggressive, rude and unacceptable’.
[50] The complaint from Coca-Cola caused significant concern to Degree Refrigeration. It is submitted that the loss of the account, if it occurred would have had a significant financial impact on the business.
[51] It is contended that Mrs McPartland’s phone manner with third parties was, at times, unacceptable. A complaint in relation to a local hot food van was made by a fellow office employee to Mrs Weston. Mrs McPartland then sent an aggressive email to the van operator.
[52] As a result of the above incidents, Mrs Weston asked Mrs McPartland to meet with her in the board room. Mrs Weston informed Mrs McPartland that her office demeanour had become an issue for her colleagues, and there was concern for her conduct and wellbeing. Mrs McPartland shared that she was taking new medication and understood Mrs Weston’s concerns.
[53] Mrs Weston replied that relying only on medication to address her medical issues was unlikely to solve the issues, and asked if she was seeking medical attention. Mrs McPartland replied that she had seen two medical professionals, but that had not worked out. Mrs Weston responded that her behaviour was impacting on her work and making the office environment hostile and negative. Degree Refrigeration was operating to run a business, and while sympathetic to Mrs McPartland’s feelings, her behaviour needed to change.
[54] Mrs McPartland responded that she felt isolated with respect to her desk location, and under-utilised. She stated that she used to be an office manager. Mrs Weston responded that teaching Mrs McPartland new duties was very difficult, and that everybody in the business did filing.
[55] The statement confirms that Degree Refrigeration did move Mrs McPartland to a more isolated part of the office as she was often emotional or worked negatively. Additionally she had a poor telephone manner. However, this was not put to Mrs McPartland by Mrs Weston during the meeting. Mrs Weston contends that she did not wish to upset her.
[56] Mrs Weston contends that she said to Mrs McPartland, “Right now the office have understanding and concern, and it will turn into frustration and resentment unless something changes.” An arrangement was made to allow Mrs McPartland some flexibility with respect to the hours worked by her so that she could attend appointments to help her with some of her medical issues.
[57] In November 2015, the statement suggests that Mrs McPartland met with Mr Murphy and Ms Breeze to discuss Mrs McPartland’s performance. This appears to be the same meeting that Mrs McPartland says was held with Mr Murphy and Mr Weston. It is contended that this meeting was a formal meeting where issues of performance were discussed including phone manner, attitude, workflow and negativity. Mr Murphy said to her out of empathy words to the effect, “Everyone is here for you, we love you.” It is contended that this was meant to mean, in effect, ‘We love you, Lyn, but this is not acceptable.’ It is contended that the statement made by Mr Murphy did not negate the performance counselling that had just occurred.
[58] With respect to the email sent to Mrs McPartland congratulating her on the correct invoice, the respondent’s submissions contend at [20]:
Sian did offer an email to Lyn of encouragement due to completing a work order correctly, it was after many failed attempts and Sian acknowledged a correct one. To put it in perspective, checking a work order for invoicing takes 3 minutes as you have to answer yes or no to a 9 line script. This task is completed more than 80 times per day by office staff.
[59] It is contended that Mrs McPartland did not seek medical assistance for issues she was experiencing. Regular complaints were made by other staff with respect to Mrs McPartland’s conduct, and a decision was made to terminate her employment.
[60] The statement at [38] states:
“We recognise that our business has grown and as such, have commenced reviewing our internal human resource management structure and are currently working on an action plan to implement employee manuals for key workplace information, workplace agreements, formal performance management tools and counselling guidelines as well as employee policies and procedures.”
[61] The statement of Ms Ruming, noting that she did not attend the hearing and was not available for cross examination, contained the following relevant assertions:
“In the office, our duties were constantly being altered and stretched, and it was necessary to have co-operation from customers and suppliers alike, to answer queries we had in order to complete tasks quickly and efficiently. This does not always occur, and Lyn unfortunately did not deal with some situations well at all. Her frustration and displeasure was not kept to herself, and the results were detrimental to the company.
Towards the end of 2015, things became quite worrying for her, with [personal information omitted], and the feeling of everything pouring down upon her caused her to have serious problems with her own health. I remember taking her aside a few times to be a sounding board to try to come up with some alternative actions for her, as she let me know that her self worth and ability to cope were at an all-time low.”
Evidence of Mrs McPartland in reply
[62] Following the filing by Degree Refrigeration of the material referred to above, Mrs McPartland filed additional material.
[63] Mrs McPartland’s evidence is that she was not negative or counter-productive when being shown new processes. She would be shown briefly how to do a new task, and would then be redirected to another duty and would not be given the original task again for some weeks. This resulted in her having to remember details after not performing those tasks for some weeks.
[64] It is Mrs McPartland’s evidence that on one occasion Ms Breeze was on the telephone to Mrs Weston. Ms Breeze informed Mrs McPartland that Mrs Weston was not pleased, and had stated that the work required in the office was ‘not rocket science’.
[65] Disturbingly, Mrs McPartland acknowledges that during a meeting with Mrs Weston she did say, “Some of these issues will only go away when I am dead.” Mrs McPartland states that this was said prior to the meeting in September 2015. It is not clear if Mrs McPartland was referring to her work or personal issues when she made this statement.
[66] Mrs McPartland contends that she did not raise any personal issues at work after she was asked not to by Mrs Weston in around September 2015.
[67] Mrs McPartland’s evidence is that if she became upset at work over work issues, she would go downstairs. On one occasion she was greatly upset over a work issue, and was made to feel that all of the staff would believe it was she who had made an error when it was not.
Mrs McPartland’s evidence at hearing
[68] Mr Arthur led Mrs McPartland through her evidence-in-chief. Given the respondent was not in attendance, I allowed Mr Arthur to ask leading questions for a large part of the evidence to assist with the expediency of the material.
[69] Having reviewed all of Degree Refrigeration’s materials, and in the respondent’s absence, I asked Mrs McPartland a number of questions. Mrs McPartland agreed that when she met with Mrs Weston in the boardroom, Mrs Weston said to her, “Right now the office had understanding and concern and it will turn into frustration and resentment unless something changes.”
[70] Mrs McPartland agreed that Mrs Weston said to her that following this discussion she didn’t want to have to have a conversation about her performance again. Mrs McPartland clarified that Mrs Weston said this in respect of not having to speak to Mrs McPartland about being emotional and upset at work.
[71] Mrs McPartland’s evidence is that if she then became upset at work, she would go downstairs and regroup before returning upstairs. She accepted what Mrs Weston had to say about not discussing personal issues at work.
[72] When I asked Mrs McPartland with respect to Mrs Weston holding concerns for her health and wellbeing, and a reference to being suicidal and depressed, Mrs McPartland explained that all of these conversations were held prior to the September 2015 meeting with Mrs Weston. If Degree Refrigeration has suggested that these discussions were held after September 2015 between Mrs McPartland and Mrs Weston, this is incorrect.
[73] Mrs McPartland’s evidence is that she did see professionals to have counselling in relation to issues she was experiencing, however they were expensive to visit. She stated that the medication that she is now on is correct, and it had taken a while to get the right medication.
[74] Mrs McPartland’s evidence is that other than the meeting with Mrs Weston in September 2015, and the meeting with Mr Weston and Mr Murphy in December 2015, she was not given any negative feedback about her performance. Mrs McPartland does not consider the meeting with Mr Weston and Mr Murphy in December 2015 to constitute a performance counselling meeting.
Mitigation
[75] It is Mrs McPartland’s desire to be reinstated to her former employment. Mrs McPartland’s evidence is that she knows that her fellow workers like her. Ms Breeze and Mrs McPartland would discuss during breaks their personal lives, and Mrs McPartland is very fond of Ms Ruming.
[76] Mrs McPartland is aware that Degree Refrigeration advertised shortly after her dismissal for an office junior. This is not disputed by Degree Refrigeration however it is contended by them that the position of office junior was advertised, but not to replace any person’s position.
[77] Mrs McPartland has sought administration jobs since her dismissal. She has been attending on TERSA, a job search organisation, and has applied for jobs on Seek.
[78] Mrs McPartland was advised by TERSA to remove her employment of 4 years from her CV. Mrs McPartland did as advised by TERSA because she stated that she cannot rely on Degree Refrigeration to say positive things about her.
[79] Mrs McPartland’s CV between her dismissal and her first meeting with TERSA on 10 May 2016 included her employment with Degree Refrigeration. From 10 May 2016, at least up until the hearing date of 24 June 2016, Mrs McPartland’s CV did not include her employment with Degree Refrigeration.
[80] Mrs McPartland’s evidence is that when inquiries were made in relation to her last employment (prior to 2011), she answers that she is only now returning to the workforce. She had not, at the date of the hearing, had any interviews.
Contact with Degree Refrigeration post-hearing
[81] Following the hearing, my Associate corresponded with Degree Refrigeration by email. The correspondence stated as follows:
“The Commissioner notes that several attempts to telephone you were made between 10am and 11am to enquire as to your whereabouts in the time after the hearing had been due to commence. The telephone numbers included those on your F3 – Employer Response, and the Degree Refrigeration Office Number. Voice messages were left on Mr Weston’s mobile phone seeking his attendance and requesting he urgently contact the Commission. No response was received from the Respondent.
In your absence, Commissioner Hunt commenced the hearing at approximately 11am. The Commission heard the evidence of the Applicant, and the Commissioner conducted some further questioning of the Applicant. The submissions and witness statement of the Respondent were then put to the Applicant by the Commissioner.
It is requested that you urgently contact the Commission and provide reasons as to why you did not attend the hearing. You are directed to do so by no later than 4pm on Monday, 27 June 2016.
Failure to provide satisfactory reasons for the absence of the Respondent at the hearing may result in a decision being made in the matter based on the evidence currently before the Commission. This may have the effect of limited weight being given to the written submissions and statement of the Respondent.
For the sake of clarity, the Commissioner intends to reserve her decision if you fail to contact the Commission by the above date and time. In that event, the Commissioner will then issue a decision without the Respondent being further heard. “
[82] Degree Refrigeration did not make contact with the Commission, and accordingly I reserved my decision. The parties were informed by email that I had reserved my decision.
Protection from Unfair Dismissal
[83] Section 382 of the Act sets out the circumstances that must exist for Mrs McPartland to be protected from unfair dismissal.
[84] There is no dispute, and I am satisfied, that Mrs McPartland was protected from unfair dismissal.
[85] It is not disputed that the dismissal was at the initiative of Degree Refrigeration.
Harsh, unjust or unreasonable
[86] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:
“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.”
[87] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[88] I am under a duty to consider each of these criteria in reaching my conclusion. 1
[89] I will now consider each of the criteria at s.387 of the Act separately.
Valid reason - s.387(a)
[90] Degree Refrigeration must have a valid reason for the dismissal of Mrs McPartland, although it need not be the reason given to the applicant at the time of the dismissal.2 The reasons should be “sound, defensible and well founded”3 and should not be “capricious, fanciful, spiteful or prejudiced.”4
[91] The reason Degree Refrigeration gave for the dismissal of Mrs McPartland was that there were on-going issues between her and the business. The termination letter from Mr Weston stated that there had been “multiple factors which you have been advised [of] in the previous meetings.”
[92] The material filed by Degree Refrigeration makes it clear that there were concerns held in relation to Mrs McPartland’s:
(a) Failure to keep up with new technology, processes and changes;
(b) Continued display of negative attitude;
(c) Servicing of a customer and being asked not to contact the customer;
(d) Poor and sometimes abusive phone manner; and
(e) Continued display of emotional outbursts, and sharing of personal problems in the workplace.
[93] Whilst in some respects those matters could well be a valid reason, Mrs McPartland was not given the opportunity to be fully trained in the new technology. It is submitted that relevant training was afforded to Mrs McPartland, and she found the work too stressful.
[94] Mrs McPartland acknowledges that up until September 2015, she was, at times, emotional, sad and negative in the workplace. She wasn’t particularly aware that she was considered by management and fellow employees to be so melancholy and abrupt. When she met with Mrs Weston and this issue was discussed, it is Mrs McPartland’s evidence that she no longer discussed her private issues in the workplace.
[95] I consider that Mrs Weston’s conversation with Mrs McPartland in September 2015 constituted a performance counselling meeting, and encompassed a well-being discussion with Mrs McPartland. Mrs McPartland confirms at [69] and [70] Mrs Weston’s concerns with her behaviour in the workplace and for Mrs McPartland’s overall mental health.
[96] Mrs McPartland’s evidence is that following the September 2015 meeting, whenever she became upset at work she would remove herself from the situation, take a short break downstairs and then return to her work. She was also meeting with health professionals to assist her through her issues.
[97] It is submitted by Degree Refrigeration that at various times Mrs McPartland’s telephone manner was rude. Following a meeting with Mrs McPartland in December 2015, she was placed predominantly on reception answering a large number of telephone calls. It is unlikely Mrs McPartland’s conduct in answering telephones was unsatisfactory at this time. If there had been concerns in relation to Mrs McPartland’s telephone manner, I am of the view that those concerns were eased following the meeting between Mrs McPartland and Mrs Weston in September 2015.
[98] There is no evidence before me that following the meeting between Mrs McPartland and Mrs Weston in September 2015 that Mrs McPartland had further emotional outbursts at work. I do consider, however, that Mrs McPartland’s earlier reference to issues going away if she were dead to have potentially played heavily on Mrs Weston’s mind. She is likely, and without her direct evidence I can only assume, to consider that Mrs McPartland had a number of significant concerns in her life.
[99] It is not clear to me what kind of meeting was held with Mrs McPartland in December 2015 in the presence of Mr Murphy. Mrs McPartland states that it was a meeting with Mr Murphy and Mr Weston and all administration staff to discuss workplace issues and concerns the business might have with Ms Breeze. Degree Refrigeration says that the meeting was between Mrs McPartland, Mr Murphy and Ms Breeze, and constituted a counselling session with Mrs McPartland.
[100] Mrs McPartland’s evidence is that she informed Mr Weston and Mr Murphy that she was upset; not with personal issues, but with the lack of training she was receiving. Her evidence is that Mr Weston said that there was no time to train Mrs McPartland.
[101] Mr Murphy’s statement, “We love you, Lyn and we don’t want to lose you”, combined with a hug is either a genuine show of affection for Mrs McPartland, or it is, as submitted by Degree Refrigeration, a sentence said by Mr Murphy to inform Mrs McPartland that while she is liked within the business, there are some issues with her performance and behaviour that needed to change.
[102] One would not ordinarily expect hugging and such an affectionate statement to be said in the workplace, however the administration team of Degree Refrigeration is a relatively small team. Mrs McPartland’s evidence is that it was welcomed and made her feel that the meeting was positive.
[103] I understand that if Mr Murphy simply said to Mrs McPartland, “We love you, Lyn”, and gave her a hug, she would be entitled to feel that the meeting was a positive one. However, the words, “and we don’t want to lose you” suggests that there were issues discussed that would result in either or both Degree Refrigeration and/or Mrs McPartland leaving the meeting with some uncertainty or a level of unhappiness.
[104] There is no material before me from Degree Refrigeration addressing any concerns the respondent had with Mrs McPartland’s performance or conduct in 2016. Mrs McPartland’s employment was terminated abruptly in February 2016 following a two day absence supported by a medical certificate. Ms Breeze was directly aware that Mrs McPartland’s illness was genuine. The evidence of Mrs McPartland is that Ms Breeze was not aware that Mr Weston had dismissed Mrs McPartland until Mrs McPartland informed Ms Breeze of this fact.
[105] On the material before me, I consider that at some point in February 2016, Mr and Mrs Weston had decided between themselves that they no longer wished for Mrs McPartland to be employed within the business.
[106] I do not consider that Mrs McPartland’s performance and conduct in January and February 2016 was unsatisfactory to warrant the termination of her employment. I appreciate the concerns that Degree Refrigeration held with respect to Mrs McPartland’s performance and conduct throughout the second half of 2015.
[107] At the time of Mrs McPartland’s dismissal on 22 February 2016, I do not find that there was a valid reason for the dismissal.
Notification of the valid reason - s.387(b)
[108] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,5 in explicit terms6 and in plain and clear terms.7 In Crozier v Palazzo Corporation Pty Ltd8 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”9
[109] Mrs McPartland attended the meeting of 22 February 2016 with Mr Weston and Mr Taylor. Mr Weston informed Mrs McPartland that her employment was terminated effective at the end of the day. Mrs McPartland inquired if she was being terminated because she had been absent for two days, to which Mr Weston replied no.
[110] Mrs McPartland asked why she was being terminated. Mr Weston answered, “You know, Lyn.”
[111] Mrs McPartland responded, “Well no, I don’t”. Mr Weston responded, “A list of things.” Mrs McPartland asked Mr Weston for the list of reasons why she was being terminated.
[112] The termination letter issued to Mrs McPartland during the meeting provides no specific detail as to the reasons for termination.
[113] I find that Mrs McPartland was not advised of the specific reasons for the termination of her employment.
Opportunity to respond - s.387(c)
[114] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.10
[115] Mrs McPartland was not given advance notice of the meeting held with her on 22 February 2016. Mr Weston commenced the meeting and informed Mrs McPartland that her employment was terminated and she would no longer be employed by the end of the day.
[116] Following that notification some discussion ensued as to the reasons for the termination. Mr Weston did not provide specific reasons. In any event, the decision had already been made by Mr Weston and informed to Mrs McPartland at the commencement of the meeting. In addition, Mr Weston issued to Mrs McPartland the termination letter he had earlier prepared.
[117] Accordingly, I find that Mrs McPartland was not afforded an opportunity to respond to any reason for termination related to the capacity or conduct in the workplace.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[118] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[119] Mrs McPartland did not know what would be discussed with Mr Weston and Mr Taylor. She did not have an opportunity to seek a support person to be present during the discussion.
[120] Noting that Mrs McPartland did not know why she was meeting, and did not request a support person, Degree Refrigeration did not unreasonably refuse Mrs McPartland a support person.
Warnings regarding unsatisfactory performance - s.387(e)
[121] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.11
[122] On the evidence before me, it is not clear if Degree Refrigeration terminated Mrs McPartland’s employment on the basis of unsatisfactory performance or for reasons of conduct.
[123] I am satisfied that during the meeting of September 2015, Mrs Weston adequately warned Mrs McPartland in relation to her behaviour or conduct in the workplace. When I questioned Mrs McPartland during her evidence, she confirmed the respondent’s position as to what was discussed with her during that meeting.
[124] If Mrs McPartland did not consider the meeting of September 2015 to be a counselling meeting, I do so. I am satisfied that it was made clear to Mrs McPartland by Mrs Weston that she would need to address her workplace behaviour.
[125] It is not so clear what was discussed during the meeting of December 2015, and I do not find that Mrs McPartland was adequately warned during this meeting.
[126] While Mrs McPartland was warned by Mrs Weston in September 2015, I have concluded that there were no further warnings issued to Mrs McPartland.
Impact of the size of the Respondent on procedures followed - s.387(f)
[127] Degree Refrigeration is a medium size business employing a reasonable number of technicians and a small number of administrative staff.
[128] Degree Refrigeration submits at [60] that following Mrs McPartland’s dismissal, it has sought to introduce workplace policies and procedures.
[129] The business is a privately-owned organisation, run by husband and wife directors. It is clear that the manner in which Mrs McPartland’s dismissal took effect is unsophisticated.
[130] That being said, Degree Refrigeration services very large organisations including McDonalds and Woolworths. The co-ordination of such service obligations to large organisations would necessarily mean that the business has a reasonable amount of organisational processes in place.
[131] I find that the size of Degree Refrigeration’s enterprise did impact on the procedures followed in effecting the dismissal.
Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[132] It is submitted that Mrs Weston is responsible for the human resources function within Degree Refrigeration. There is no information before as to Mrs Weston’s qualifications or experience in this field.
[133] It is assumed that Mrs Weston knew of Mr Weston’s decision to abruptly dismiss Mrs McPartland on 22 February 2016. It is assumed, therefore, when considering the manner in which Mrs McPartland’s dismissal took effect that within Degree Refrigeration there is an absence of dedicated human resource management specialists or expertise.
[134] I consider that this lack of expertise did impact on the procedures followed in effecting the dismissal.
Other relevant matters - s.387(h)
[135] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. I consider the following matters to be relevant to the determination of whether the dismissal of the Mrs McPartland was harsh, unjust or unreasonable:
Mrs McPartland’s period of service and age
[136] In Sexton v Pacific National (ACT) Pty Ltd12, Vice President Lawler noted:
“Relevantly advanced age and long service can render harsh a termination that would not be harsh in the case of identical conduct by a younger person with relatively short service. Nevertheless, age and length of service simply remain a factor to be taken to account in considering whether the termination was harsh, unjust or unreasonable and in applying the principle of a “fair go all round.”
[137] Mrs McPartland had served four years with Degree Refrigeration. This is not an insubstantial period of time, nor is it a very long period of time.
[138] Mrs McPartland is 56 years old and lives with her husband and one adult child.
Mrs McPartland’s employment record
[139] There is no evidence of any written warnings having been issued to Mrs McPartland.
Conclusion
[140] Having regards to my considerations above, and notwithstanding the size of the business and the absence of dedicated human resources management specialists, I find that Mrs McPartland’s dismissal was harsh, unjust and unreasonable.
Remedy
[141] Section 390 of the Act reads as follows:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
[142] Mrs McPartland is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether she can be reinstated.
[143] Section 391 of the Act provides as follows:
“391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) 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 reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
[144] I have found that Mrs McPartland was unfairly dismissed however it is not axiomatic that reinstatement or reappointment follows such a finding. In a Full Bench decision in Nguyen v Vietnamese Community in Australia[2014] FWCFB 7198 it was held:
“[35] The appellant’s submissions appear to proceed on the basis that reinstatement automatically follows from a finding of unfair dismissal. This is not correct. There is no right to reinstatement consequent upon a finding that an applicant has been unfairly dismissed. The commission has a discretion as to whether a remedy will be awarded in a case where a dismissal has been found to be unfair. Reinstatement will only be awarded if the commission is satisfied that is appropriate to do so.”
[145] Submissions put by Degree Refrigeration with respect to reinstatement were:
“Reinstatement…..is not something that [we] deem appropriate as we believe that the employer / employee workplace relationship has been damaged and is irreparable in our view.”
[146] It is common for respondents in unfair dismissal matters to argue that there it is inappropriate to reinstate an employee who has been found to be unfairly dismissed because of a loss of trust and confidence. In Nguyen, the Full Bench examined the relevant principles concerning an alleged loss of trust of confidence in the context of an application for reinstatement. It held:
“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:
- Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
- Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
- An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
- The reluctance of an employer to shift from a view, despite a tribunal's assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
- The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.
[28]Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”
[147] In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186at 191-192, the Full Court of the Industrial Relations Court said:
"... We accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.
Each case must be decided on its own merits."
[148] While Perkins was decided under the former statutory scheme the above observations remain relevant to the question of whether reinstatement is appropriate in a particular case.
[149] Degree Refrigeration did not attend the hearing to give evidence as to the appropriateness or inappropriateness of reinstatement of Mrs McPartland in the event that I determined that her dismissal was unfair.
[150] In closing submissions on behalf of Mrs McPartland, the following was put by Mr Arthur:
MR ARTHUR: No, but it may be that that's what happens. Unforeseen things happen with unrepresented parties. But it's my submission that this worker should be compensated for the time that she's been off work and unpaid and it's my submission that she should be reinstated. Her evidence is that she gets on well with those at work. The employer is not here to rebut that. 13
There are statements scattered through the employer's statement to the effect that she brings personal issues to work and so forth, but importantly, there's no statement from Carli Breeze, her immediate manager, and Kyle Murphy, her manager. Those are the two persons to whom - well she reports to Carli Breeze and Carli Breeze reports to Kyle. Now, in the absence of either of those or both of those preparing a statement for this Commission to the effect that we can't have her back for whatever reason, then what's the Commission left with? It's not really left with anything upon which to base a decision that she ought not to be reinstated. 14
I mean, that's the facts of it. 15
THE COMMISSIONER: And in the alternative? 16
MR ARTHUR: In the alternative to reinstatement? 17
THE COMMISSIONER: Yes. 18
MR ARTHUR: Well, I don't think there is an alternative to reinstatement. I think that she should be compensated for the time that she's been off work and unpaid and that's probably 26 weeks by the time this Commission hands down its decision imminently. And I think that there should be an order for reinstatement. That's my submission. 19
[151] The submissions put by Degree Refrigeration do not go as far as alleging that there has been a breakdown of the employer/employee relationship due to a loss of trust and confidence. It would be ingenious of the respondent to do so owing to the fact that Mrs McPartland has not been accused of any misconduct.
[152] The submissions state, “…we believe that the employer / employee workplace relationship has been damaged and is irreparable in our view.”
[153] Having regard to the authorities in Nguyen and Perkins, I do not find that it is inappropriate to reinstate Mrs McPartland to her former position. While it may be uncomfortable in the workplace, especially so given it is largely a family-operated business, the onus of establishing a loss of trust and confidence rests on the party making the assertion.
[154] In this case, the submission put by Degree Refrigeration is less than an assertion of loss of trust and confidence; it is an assertion that the relationship is damaged and in the view of the respondent, irreparable. However, no evidence was put to the Commission to that effect.
[155] In addition, a respondent’s failure to attend a hearing of the Commission where reinstatement is sought should not be rewarded by concluding that their non-attendance would make reinstatement more difficult.
[156] Mrs McPartland wishes to return to the workplace. It will be necessary for the parties to ease into the relationship. It is recommended that Degree Refrigeration seek professional human resources guidance to ensure that Mrs McPartland’s return is successful.
[157] Having regard to Mrs McPartland’s age and her failure to obtain alternative employment to date, I therefore consider that it is appropriate to order, pursuant to s.391(1) of the Act, that Mrs McPartland be reinstated to the position she held immediately before her dismissal.
[158] I also consider it appropriate that an order be made under s.391(3) of the Act that Degree Refrigeration pay Mrs McPartland the amount of the remuneration lost as a result of her dismissal. Such an order is appropriate because Degree Refrigeration dismissed Mrs McPartland without a valid reason to do so and thereby caused her monetary loss.
[159] I am satisfied that Mrs McPartland has made reasonable attempts to mitigate her loss by seeking alternative employment. The evidence is that Mrs McPartland was, immediately before her dismissal, earning a gross amount of $46,059.94 per annum. The dismissal occurred on 22 February 2016, and Mrs McPartland has received a payment of four weeks in lieu of notice.
[160] Accordingly, there is a period between 22 March 2016 and today’s date that constitutes remuneration lost because of the dismissal. That is a period of 20 weeks. At a weekly rate of $885.77, the monetary amount to be paid to Mrs McPartland will therefore be $17,715.36 less applicable taxation.
[161] For the same reasons, I also consider it appropriate to make an order under s.391(2) of the Act to maintain the continuity of Mrs McPartland’s employment.
[162] A separate order will issue giving effect to this decision.
COMMISSIONER
1 Sayer v Melsteel[2011] FWAFB 7498 at [20]
2 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
3 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373
4 Ibid
5 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
6 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
7 Previsic v Australian Quarantine Inspection Services Print Q3730.
8 (2000) 98 IR 137.
9 Ibid at 151.
10 RMIT v Asher (2010) 194 IR 1, 14-15
11 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237
12 (2003) unreported, PR931440 at [30].
13 PN580
14 PN581
15 PN582
16 PN583
17 PN584
18 PN585
19 PN586
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