Mrs Lynn Gluyas v Australian Western Railroad Pty Ltd T/A Aurizon

[2015] FWC 6161

[2015] FWC 6161

FAIR WORK COMMISSION

DECISION

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

Mrs Lynn Gluyas
v
Australian Western Railroad Pty Ltd T/A Aurizon
(U2015/682)

COMMISSIONER CLOGHAN PERTH, 11 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] This is an application by Mrs Lynn Gluyas (Mrs Gluyas or Applicant) seeking a remedy for alleged unfair dismissal from her former employer, Australian Western Railroad Pty Ltd T/A Aurizon (Aurizon or Employer).

[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] At the hearing, Mrs Gluyas was represented by Mr K Singh, Industrial Officer, Australian Rail, Tram and Bus Industry Union, Western Australia Branch (RTBU). Mrs Gluyas gave evidence on her own behalf.

[4] Aurizon was represented by Mr D Johnson, Employee Relations Leader (WA). Evidence on behalf of the Employer was given by Ms S Ball, Senior Property Administrator.

[5] This is my decision and reasons for decision on Mrs Gluyas’ application.

RELEVANT BACKGROUND

[6] Mrs Gluyas commenced employment with the Employer on 31 March 2009.

[7] On 12 December 2014, Mrs Gluyas applied for annual leave from 22 December 2014 to 2 January 2015 inclusive. Ms Ball approved the Applicant’s annual leave from 22 to 31 December 2014.

[8] Mrs Gluyas was granted leave without pay for 2 January 2015 because she had exhausted her accrued annual leave balance.

[9] On 16 December 2014, Mrs Gluyas applied for annual leave from 19 to 30 January 2015 inclusive.

[10] On 19 December 2014, Mrs Gluyas was given a letter of warning concerning her unacceptable conduct.

[11] On 23 December 2014, Ms Ball rejected Mrs Gluyas’ application for annual leave between 19 and 30 January 2015 inclusive. Mrs Gluyas was advised to contact Ms Ball if she wanted to discuss the rejection of her annual leave request.

[12] Mrs Gluyas did not attend work on 5 January 2015 and provided a medical certificate to the Employer from 5 to 12 January 2015 inclusive.

[13] On 13 January 2015, Mrs Gluyas was directed, by Ms Ball, to attend work as normal between 19 and 30 January 2015. Mrs Gluyas was also advised that failure to attend work, as directed, may result in disciplinary action against her which could result in termination of employment.

[14] Ms Ball’s discussion with Mrs Gluyas (13 January 2015) was followed up with written communication from the Employer setting out that her annual leave application had been refused because of a lack of accrued entitlements. 1

[15] On 14 January 2015, Mrs Gluyas responded to Ms Ball apologising for leaving the annual leave request so late and that she would be unable to make alternative arrangements regarding her leave. Mrs Gluyas apologised for her “mistake” and she, “would be very disappointed if my action resulted in my employment being terminated”. 2

[16] On 16 January 2015, Mrs Gluyas emailed Ms Ball as follows:

“I will be leaving soon what is the “disciplinary action”. Will I find out before I go?” 3

[17] Ms Ball responded, on the same day, stating that any disciplinary action would be discussed with a Mr Cox, who was then on leave. In turn, Mrs Gluyas replied, “I see”. 4

[18] Mrs Gluyas failed to attend work between 19 and 30 January 2015 inclusive.

[19] During the period between 19 and 30 January 2015, Mrs Gluyas was in Melbourne. While in Melbourne, Mrs Gluyas attended between seven and 10 tennis matches at the Australian Open. 5

[20] Mrs Gluyas described herself as “definitely” a “tennis tragic” 6 and she watches as much tennis as she can.7 Mrs Gluyas watched the Grand Slams and minor tournaments, such as the Hopman Cup and the Brisbane and Hobart Internationals.

[21] On 22 January 2015, Mrs Gluyas was informed of her unacceptable conduct in not attending work as directed, and required to attend an interview on 2 February 2015. The correspondence advised Mrs Gluyas that if the allegations were sustained, it could result in disciplinary action up to and including termination of employment. 8

[22] Following the meeting on 2 February 2015, Mrs Gluyas was, on 3 February 2015, provided with correspondence from the Employer entitled, “Show cause why employment should not be terminated”. Mrs Gluyas was asked to provide a response by 5:00 pm on 4 February 2015. 9

[23] Mrs Gluyas provided a response to the “show cause” correspondence on 4 February 2015. 10

[24] On 6 February 2015, Aurizon advised Mrs Gluyas that it had given consideration to Mrs Gluyas’ response to the Employer’s “show cause” letter, however, her employment was terminated with immediate effect and with five (5) weeks’ pay in lieu of notice. 11

[25] The facts of this application are largely not in dispute. The Applicant’s submission is essentially that the dismissal, was disproportionate to her conduct.

RELEVANT LEGISLATIVE FRAMEWORK

[26] There is no dispute between the parties that Mrs Gluyas has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework for consideration is ss.385 and 387 of the FW Act.

[27] Section 385 of the FW Act sets out the meaning of unfair dismissal 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
(c) ...
(d) ...”

[28] The criteria for whether a dismissal is harsh, unjust or unreasonable can be found in s.387 of the FW Act as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

CONSIDERATION

[29] Section 387 of the FW Act sets out the matters which the Commission must take into account in determining whether a dismissal was “harsh, unjust or unreasonable”. In seriatim, they are as follows.

s.387 (a) - was there a valid reason for the Applicant’s dismissal?

[30] A valid reason for dismissal is one that is “sound, defensible or well founded and not capricious, fanciful or spiteful”. The authority for this approach is found in the often cited case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373 which reads as follows:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”

[31] A valid reason for dismissal attempts to balance, in a practical way, the needs of employees and employers.

[32] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 12. Further,

“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed on reasonable grounds after sufficient enquiry that the employee was guilty of the conduct which resulted in the termination”. 13

[33] The Applicant concedes that she:

• failed to attend work between 19 and 30 January 2015; and, in doing so,



• failed to comply with Aurizon’s written direction to attend work between 19 and 30 January 2015.

[34] Mrs Gluyas concedes that Aurizon may have had a valid reason to terminate her employment.

[35] Contrary to many applications before the Commission which consist of allegations and denials, this is an application where the Applicant cannot, and does not, deny the conduct which led to her dismissal.

[36] Consistent with paragraph 387(a) of the FW Act, I find, on the evidence, that Mrs Gluyas failed to attend work between 19 and 30 January 2015 without lawful cause and contrary to a written direction from her Employer. In doing so, I am satisfied that Aurizon had a valid reason to terminate Mrs Gluyas’ employment.

[37] For convenience, I intend to take into account, at this point, the criteria in s.387(h) of the FW Act, as I think it has a bearing on the Applicant’s contention that her dismissal was “harsh” in the circumstances.

[38] While not referred to by Mr Singh, I understand he is referring to Byrne v Australian Airlines Ltd 14 where McHugh and Gummow JJ state 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.”

[39] The Applicant contends that her dismissal was harsh for the following reasons:

• she understood that it was compulsory to take annual leave during Aurizon’s Christmas/New Year shutdown (22 December 2014 to 2 January 2015 inclusive);



• had she known it was not compulsory to take annual leave during the Christmas shutdown, Mrs Gluyas would have not taken annual leave during this period;



• she had submitted her annual leave application on 16 December 2014 for the period 19-30 January 2015 (4 weeks’ notice) – which was more than her understanding that one week’s notice was all that was required;



• the Employer’s rejection of her annual leave request only became known to her on 13 January 2015, which was “less than a week to make alternative plans”;



• following the rejection of her annual leave request, it was unfair for Aurizon to refuse the Applicant leave without pay, “because it granted leave without pay previously”;



• the Applicant had outlaid (with her husband) approximately $6 000 to travel to Melbourne which had been booked by her husband in mid-October 2014; and



• the Applicant was remorseful and had offered to pay the cost of the temporary reception for the period she absented herself from the office. 15

[40] I intend to deal with each of the alleged mitigating factors as follows.

Was it compulsory to take annual leave during the Christmas shutdown?

[41] On 7 July 2014, Aurizon advised employees of its annual shutdown from 22 December 2014 to 7 January 2015. The information provided that all employees “should” take seven (7) days annual leave, except for certain employees, including those with insufficient leave balances.

[42] In evidence, Mrs Gluyas conceded that she had received and read the information regarding the Christmas shutdown, but not the two dot points which provide for the exceptions – including the exception of not having sufficient leave. 16

[43] I am not persuaded that Mrs Gluyas’ “understanding” that it was compulsory to take annual leave during the Christmas shutdown was soundly based, especially as she had been employed with the Employer for approximately five (5) years.

Had she known it was not compulsory to take annual leave, she would not have done so

[44] With respect to Mrs Gluyas’ contention that, had she known it was not compulsory to take annual leave during the Christmas shutdown, she would not have taken the annual leave. This is simply self-convenient rationalisation after the event.

Was only one week’s notice required to take annual leave?

[45] Mrs Gluyas’ evidence is that she submitted her application for annual leave four (4) weeks before the commencement date of annual leave – 19 January 2015. Whereas it was her understanding that only one week’s notice was required.

[46] Firstly, the booking for Mrs Gluyas and her husband to attend the Australian Open were made in October 2014. Secondly, I prefer Ms Ball’s evidence that the one week’s notice only related, in Mrs Gluyas’ case, to leave associated with supporting her daughter and grandson at the time of his birth. Similarly, I find this mitigating factor no more than an employee attempting, after the event, to misuse a benefit given to them by an Employer who was empathetic to their family circumstances. Further, the facts are that on 22 August 2014, only four months earlier, Mrs Gluyas requested leave commencing on 15 September 2014 (which is over three (3) weeks’ notice).

[47] I am not persuaded, on the evidence, that one week was the “norm” for making application for annual leave. Accordingly, the “comparator” argument is not valid. Secondly, Mrs Gluyas was in a position to make application for her annual leave much earlier, and more importantly, ensure that she had sufficient entitlements to not have such a request rejected on grounds of inadequate credits.

[48] This leads to the next mitigating factor and that is that the Employer, in declining the request for annual leave, left her with “less than one week to make alternative arrangements”.

“Less than a week to make alternative arrangements”

[49] The veracity of this contention is premised on the willingness of Mrs Gluyas to make alternative arrangements; this is not evident on the evidence.

[50] I am satisfied that Mrs Gluyas became aware of the email rejecting the annual leave on 12 January 2015 17 and not 13 January 2015 as set out in her written evidence.18

[51] Secondly, if Mrs Gluyas had returned to work on 5 January 2015, she would, presumably, had read her emails one week earlier and formally known on that date.

[52] I say “formally known” because I have an unease with her evidence that she had not read her emails during the Christmas shutdown. Mrs Gluyas gave evidence that, although she could access her emails from home during the Christmas shutdown period, she was “sure she didn’t” 19 read her emails.

[53] I say “unease” because if a person has outlaid $6 000 to go to the Australian Open, and meet with family from New Zealand, it seems counterintuitive not to want to know as early as possible whether the request for annual leave had been approved especially when having access to work emails from home.

Leave without pay

[54] I now turn to the alleged mitigating factor that, following the rejection of her annual leave request for the period 19-30 January 2015, the Employer should have granted Mrs Gluyas leave without pay as it had done previously.

[55] Leave without pay is at the discretion of the Employer. Further, it is not mentioned in the Applicant’s contract of employment.

[56] It is not disputed that the Applicant received two (2) days leave without pay in September 2014 and a further day on 2 January 2015.

[57] Mrs Gluyas submits that it was “unfair” 20 not to grant her leave without pay. In my view, it was not unfair for the following reasons: it is at the Employer’s discretion; the late application for leave; not arranging her leave so she could take it off with pay – especially as the proposed trip had been discussed in July and booked in October 2014, and finally, specific performance matters which were occurring at this particular time.

[58] I now return to more general matters in my consideration.

[59] Mr Singh, for the Applicant, submitted in closing submission on three (3) occasions that Mrs Gluyas was “boxed into a corner”. 21 In doing so, it is clear that Mrs Gluyas is the one in the corner. However, the question is who took the actions which led to her being “in the corner”?

[60] As a definite “tennis tragic”, it would be unsporting to criticise Mrs Gluyas’ decision to attend the Australian Open. Mrs Gluyas considered attending in July and obtained tickets in October 2014. However, in considering, and then making the decision to attend the Australian Open, she had to manage her obligations and responsibilities to her Employer.

[61] In July and October 2014, Mrs Gluyas was not “boxed into a corner” either by herself or her Employer. It was a matter of seeking a mutually satisfactory outcome for both herself and her employer regarding leave to attend the Open.

[62] In seeking a mutually satisfactory outcome, what were Mrs Gluyas’ actions?

[63] First, Mrs Gluyas’ evidence is that she never gave it a “second thought” in July that she might be short of leave to attend the Australian Open. 22

[64] Secondly, Mrs Gluyas went to Bali in September 2014. Mrs Gluyas was absent for nine (9) working days. At the time, Mrs Gluyas had seven (7) days annual leave and was given two (2) days leave without pay. I am satisfied that Mrs Gluyas, at the time, was aware that her access to accrued annual leave had been exhausted. Such a situation did have an impact on her ability to access leave to attend the Open in January 2015.

[65] Notwithstanding that Mrs Gluyas must have been aware that she had exhausted her accrued annual leave in September 2014, and had made a decision to attend the Australian Open in October 2014, Mrs Gluyas made an application for annual leave over the Christmas shutdown period on 12 December 2014. The leave consisted of paid and unpaid leave was approved by Ms Ball on 15 December 2014.

[66] At this point, the answer to the question of what actions led the Applicant to be “boxed into a corner”, can only be those actions of Mrs Gluyas. There is no doubt that it was Mrs Gluyas who was “boxing herself into a corner”.

[67] Having been given paid and unpaid leave over the Christmas shutdown period (on 15 December 2014), Mrs Gluyas sought further leave the day after on 16 December 2014 at 6:28 pm, for 19 to 30 January 2015. This application was three (3) working days before proceeding on leave for the Employer’s Christmas shutdown.

[68] The simple fact is that Mrs Gluyas knew and could have applied for annual leave to attend the Australian Open at any time after making the bookings in October 2014 and before 16 December 2014.

[69] Further, and importantly, Mrs Gluyas could have made the application on 12 December 2014 at the same time she made application for leave during the Christmas shutdown. Should Mrs Gluyas have done so, she would have been faced with a choice.

[70] Having “boxed herself into the corner” with a number of self-inflicted punches and obtained leave over the Christmas shutdown period, Mrs Gluyas expected the Employer to walk back to the middle of the ring and expected to grant her leave without pay to attend the Australian Open.

[71] Apart from her leave arrangements, Mrs Gluyas had been experiencing, during this period, performance issues which resulted in meetings with Ms Ball on 21 August and 19 December 2014.

[72] Detailed notes of the performance meetings on 21 August and 19 December 2014 were provided by Ms Ball in her evidence. Mrs Gluyas agreed with their content. 23 After the meeting on 19 December 2014, Mrs Gluyas was provided with correspondence on the same day which reads, in part:

“Aurizon will be monitoring your conduct, and we expect a marked improvement.

Aurizon has directed you not to again engage in this conduct or any further breaches of the Aurizon Code of Conduct or other unacceptable conduct. If you breach this direction, you may be performing an act of serious misconduct, and you may be disciplined in accordance with our serious misconduct procedure. Serious misconduct can lead to termination of employment.” 24

[73] Ms Ball rejected Mrs Gluyas’ application for annual leave on 23 December 2014 because of a lack of accrued entitlements.

[74] Mrs Gluyas did not return on 5 January 2015 from the Christmas/New Year shutdown and commenced a week’s sick leave. While there is some disquiet around this period of sick leave, as it coincided with the Hopman Cup, the issue is not determinative of the matter.

[75] Mrs Gluyas became aware, on her return from sick leave on 12 January 2015, that the request for leave from 19 to 30 January 2015 had not been approved. Mrs Gluyas met with Ms Ball on 13 January 2015.

[76] Mrs Gluyas’ responses at the meeting, in the circumstances, are not credible. For example:

MS BALL: “Did you check if you had appropriate leave balances available before planning a holiday?”

APPLICANT: “I thought I had one week and just assumed it would be OK.” 25

[77] Further,

MS BALL: “…and you will be expected to attend work.”

APPLICANT: “So what happens now? Can’t you provide me with a warning and I’ll make sure this doesn’t happen again.” 26

[78] Mrs Gluyas did not commit to attending work as expected by Ms Ball.

[79] Ms Ball confirms in writing on the same day (13 January 2015) that Mrs Gluyas is required to attend work and states, “you will therefore be required to attend work as normal during this time.” 27 Ms Ball further states that failure to attend work, as required, may result in termination of employment.

[80] During the period October 2014 to her termination of employment, Mrs Gluyas had been corresponding with another employee using the Microsoft Lync application on her work computer. Mrs Gluyas agreed that her communication was in breach of the Employer’s Information Technology policy. However, what is important in this application are comments which go to her credibility as a witness, and her approach to attending the Australian Open.

[81] Mrs Gluyas corresponded, as early as 11 December 2014, to the other employee when she will be flying to Melbourne.

[82] Further, on 14 January 2015, while not advising Ms Ball directly that she would not attend work (at most, she states, “we will be unable to make alternative plans”) she corresponded with the other Aurizon employee that, although her leave has not been approved, “but I’m still going”, and after her meeting with Ms Ball on 14 January 2015, “I said we can’t won’t change our plans”. 28

[83] Mrs Gluyas did not attend work as directed between 19 and 30 January 2015.

[84] On a very simplistic level, the Fair Work Regulations 2009 define serious misconduct as conduct which includes:

“wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment.”

[85] And further,

“refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.”

[86] While Mrs Gluyas was not summarily dismissed for serious misconduct, I am satisfied, on the evidence, that her refusal to attend work between 19 and 30 January 2015 so that she could attend the Australian Open, was wilful, deliberate and inconsistent with her contract of employment.

[87] At a very basic level, an employee is obligated to carry out an employer’s lawful orders. Pursuant to a contract of employment, a fundamental obligation is to turn up for work.

[88] The facts of this application failed to satisfy me that Mrs Gluyas was treated harshly, especially given the fulsome evidence provided as part of the proceedings.

[89] With such fulsome evidence, it is difficult to see how Mrs Gluyas could argue any other position but that she was the cause of her own misfortunes. It was Mrs Gluyas who boxed herself into a corner and left herself with no alternative but to attend work as directed or the Australian Open and risk being dismissed.

[90] Mrs Gluyas has attempted to “dress up” or transfer the consequences of her own actions onto the Employer. All those mitigating factors have been found wanting.

[91] Mrs Gluyas wilfully and deliberately flouted an essential contractual condition to attend work. Having assessed the nature and duration of Mrs Gluyas’ conduct, I am unable to conclude that the dismissal was harsh in the circumstances.

s.387(b) - notification of the reasons for termination of employment

[92] The Applicant concedes that she was notified of the Employer’s reasons to terminate her employment.

s.387(c) - opportunity to respond

[93] Mrs Gluyas concedes that she was given an opportunity to respond to the reasons for the Employer terminating her employment.

s.387(d) - support person

[94] The Applicant had a support person at each disciplinary meeting.

s.387(e) - unsatisfactory performance

[95] This application relates primarily to Mrs Gluyas’ conduct. However, it is notable that while the correspondence from Aurizon to her dated 19 December 2014, is entitled “unacceptable conduct”, the substance of the matters relate to her performance. Mrs Gluyas’ work performance, at that time, was unacceptable. The Employer requested, and Mrs Gluyas agreed, to improve her performance in two particular areas.

[96] Aurizon advised Mrs Gluyas on 19 December 2014 that if she continued with her unacceptable conduct/performance/behaviour, it may be an act of serious misconduct and could lead to her termination of employment. Mrs Gluyas did within weeks and it led to her dismissal.

s.387(f) - size of enterprise

s.387(g) - Human Resources

[97] Aurizon is a large employer and adopted, prior to and subsequent to the misconduct, actions which can only be described as fair and reasonable. For this reason, the Applicant’s representative sensibly came to the view that Mrs Gluyas’ only avenue was to claim the harshness or disproportionate response by the Employer to her conduct.

s.387(h) - other matters

[98] All relevant other matters have been considered above.

CONCLUSION

[99] In conclusion, for the reasons set out above, I am satisfied that Mrs Gluyas’ dismissal from her employment was not unfair pursuant to s.387 of the FW Act. Accordingly, the application must be dismissed. An Order to this effect is issued jointly with this Decision.

COMMISSIONER

Appearances:

K Singh, industrial officer, RTBU, on behalf of the Applicant.

D Johnson on behalf of the Employer.

Hearing details:

2015:

Perth,

15 July.

 1   Exhibit R7(12)

 2   Exhibit R7(13)

 3   Exhibit R7 (14)

 4   Exhibit R7 (14)

 5   Transcript PN50

 6   Transcript PN61

 7   Transcript PN57

 8   Exhibit R7(15)

 9   Exhibit R7 (16)

 10   Exhibit R7 (17)

 11   Exhibit R7(18)

 12   Brink v TWU PR922612 at paragraph [7]

 13   King v Freshmore (Vic) Pty Ltd S4213 at paragraph [24]

 14   Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465

 15   Exhibit A1 (22)

 16   Transcript PN203

 17   Transcript PN286 and Exhibit A3

 18   Exhibit A4 (22)

 19   Transcript PN282

 20   Exhibit A1 (22)

 21   Transcript PN535, 538, 539

 22   Transcript PN214

 23   Transcript PN67 and PN69

 24   Exhibit R6 (5)

 25   Exhibit R6 (11)

 26   Exhibit R6 (11)

 27   Exhibit R6 (12)

 28   Exhibit R6 (19A)

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