Mrs Rebecca McConnell v Terry White Chemists Victoria Point

[2015] FWC 4060

[2015] FWC 4060

FAIR WORK COMMISSION

DECISION

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

Mrs Rebecca McConnell
v
Terry White Chemists Victoria Point
(U2015/4340)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 23 JUNE 2015

Summary - unfair dismissal application under s.394 - compliance with Small Business Fair Dismissal Code - non-compliance with mandatory procedural requirements - application considered under s.387 - application upheld - compensation ordered - consequences of performance issue and unfounded claims against employer.

[1] This decision concerns an application by Ms Rebecca Jo-anne McConnell under s.394 of the Fair Work Act 2009 (“the Act”) by which she seeks an unfair dismissal remedy in respect of her alleged termination from VP Health Pty Ltd (trading as Terry White Chemists Victoria Point) (“the employer”) on 20 March 2015.

[2] Ms McConnell’s evidence was that she had performed duties as a dispensary technician at the Victoria Point pharmacy since July 2010, and including the period following the acquisition of the pharmacy by the current owners, Mr Kenny Wong and Ms Louise Yuen through the vehicle of VP Health Pty Ltd. Mr Wong and Ms Yuen are directors of VP Health Pty Ltd. VP Health Pty Ltd (hereafter referred to as VP Health) purchased the pharmacy from Victoria Point Pharmacy Group on 12 September 2014. Mr Wong and Ms Yuen are both pharmacists.

[3] Ms McConnell claims that she had performed the duties of a dispensary technician since July 2010 and continued to do so upon the transmission of business referred to above. Ms McConnell claims that she had received no verbal or written warnings about her job performance in that period.

[4] The employer is subject to the Small Business Fair Dismissal Code (“the Code”) provided by the Act, given that the number of employees the employer employed at the time of Ms McConnell’s dismissal makes it a small business for purposes of s.23 of the Act.

[5] The Code states that:

“It is fair 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.

The Code defines serious misconduct as including ‘theft, fraud, violence and serious breaches of occupational health and safety procedures’.

The Commission does not have to make a finding, on the evidence, whether the conduct occurred. The Commission needs to find whether the employer had a reasonable belief that the conduct of the employee was serious enough to warrant immediate dismissal. It is not necessary for the Commission to determine whether the employer was correct in the belief that it held.

For an employer to believe on reasonable grounds that the conduct of the employee was serious enough to justify immediate dismissal, the employer must establish that they did in fact hold the belief that:

• the conduct was by the employee



• the conduct was serious, and



• the conduct justified immediate dismissal.

The employer must establish that they had reasonable grounds to hold the belief, which could be established by providing evidence of inquiries or investigations the employer undertook to establish their belief.

Other dismissal

In non-summary dismissal cases, the employee must be warned that if there is no improvement to their conduct or capacity, they could be dismissed. The employee must be given a reason as to why their employment is at risk and the reason must be a valid reason based on their conduct or capacity to do the job.

The employer must give the employee 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

During discussions between the employer and employee about matters where dismissal is possible, the employer must allow the employee to have another person present to assist them. However, this person cannot be a lawyer acting in a professional capacity.

If an employee claims to the Commission that they have been unfairly dismissed, the employer will have to prove that they have complied with the Code.”

[6] In her written materials, at least, Ms McConnell contends that the employer dismissed her for reason that she did not display suitable “front shop” job performance and that her position was not needed in the business any longer. Ms McConnell claims that she was not employed to perform front shop duties and was not a pharmacy assistant, and her performance should not have been evaluated against the criteria relevant to that position. Further, if her job was no longer required, Ms McConnell contended that the employer had made her redundant and that she should therefore be paid the ordinary notice and severance payments.

[7] Ms McConnell’s dismissal, therefore, was unrelated to the serious misconduct provisions of the Code. So far as the employer relies upon the Code, it relies instead upon the provisions of the Code relating to “Other Dismissals”.

[8] At the time of the hearing, Ms McConnell introduced by her viva voce evidence a range of new and previously unmentioned claims about her employer, which she alleged were the cause in some way or another of her dismissal. Ms McConnell’s lawyer claimed they were “vast and lengthy claims going to Mr Wong’s misconduct” and revealed the “real reasons” for the dismissal.

[9] Ms McConnell claimed that she had not raised these various claims at any earlier point because - whilst they were always in her mind - she feared legal reprisals. It was not until such time as she was represented by a lawyer - which she now was - that she felt comfortable raising the various issues. The various additional claims, in summary, were that:

• her employer had provided her with a uniform that had holes in the seams (or where the seams were loose) and she had been directed to make the repairs herself;



• the female staff toilet facilities at the workplace had been inadequate and she had been invited to make use of the general staff toilets at the shopping complex in which the pharmacy operated;



• she was only permitted to use the toilets in her 10 minute break;



• Mr Wong required her to wash (and reuse) the methadone cups after they had been used by clients;



• Mr Wong was incorrectly dispensing “take-away” methadone for clients;



• Mr Wong had directed her to not sort through the returned medicines bin (“the rum bin”) and to make better use of her time (when that had been her responsibility);



• She had witnessed Mr Wong take medicines that were near their use-by date into the Webster room (for packing into customer dose-administration packages);



• She had received a customer complaint about the packaging and contents of the customer’s medicines and had passed that complaint to Mr Wong;



• Mr Wong had not required the use of green labels on medicines to indicate the prescription had no repeats;



• She had witnessed a refrigerated drug being left at room temperature.

[10] Ms McConnell claims that on 20 March 2015, Ms Yuen and Mr Wong invited her to a meeting in the clinic room. After some preliminary comments, Ms Yuen was said to have indicated to Ms McConnell that:

“Well, Bec, the money is all in front shop and not in dispensary therefore a technician is not needed any more.”

[11] Mr Wong was then said to have commented that:

“[...] Due to the fact a technician is no longer required that moving forward your assessment has been based solely on your front shop performance.” (sic)

[12] Ms McConnell says that she replied that she did not work in the front shop, but her role was in the dispensary at the back of the pharmacy.

[13] Mr Wong was said to have responded with the comment that Ms McConnell’s performance was assessed “on your poor front shop performance I will not be renewing your contract.”

[14] Ms McConnell protested the decision and indicated that she had been employed as a dispensary technician and was now being dismissed on the basis of criteria that were irrelevant to her position.

[15] Mr Wong was said to have responded with words to the effect of:

“Bec you have to understand where I am coming from, honestly it’s all about front shop and you just don’t meet front shop standards.”

[16] Ms McConnell says she indicated that she had never been trained to perform front shop functions and was unaware of her employer’s expectations in this regard. Mr Wong was said to have replied:

“That’s just the way it is.”

[17] Ms McConnell says she was paid in lieu of notice on grounds that the employer did not wish to have any customers upset by the circumstances of her departure.

[18] Ms McConnell claimed that even though under the new owners the pharmacy went through an extensive fit out period, in which new shelving and displays were constructed, her employer had never instructed her to set up any displays for catalogues or perform any front shop duties of any kind.

Respondent’s claims

[19] The employer’s evidence, not surprisingly, was to a very different effect.

[20] Ms Yuen, a director of VP Health and a pharmacist, claimed that Ms McConnell was employed as a Dispensary Technician/Assistant (a position based on the attainment of a certificate level 3 under the Pharmacy Industry Award 2010).

[21] Ms Yuen claims that given that she was in the pharmacy on a daily basis (at least in latter part of 2014) she observed Ms McConnell:

• Making errors in the Controlled Drugs Register Book (which were tendered in her evidence);



• Refusing to promote Terry White brand items whilst handing out prescriptions (despite being requested to do so);



• Failing to achieve targets such as the “scripts on file” service for customers; and



• Despite having been trained in broad based front shop duties (including how to count the till, work the EFTPOS, and perform end of day tasks) Ms McConnell, when asked, performed them with low enthusiasm and a negative attitude which affected the pharmacy’s image.

[22] In this latter regard, Mr Wong maintained that the position description, attached to Ms McConnell’s offer of employment (which Ms McConnell claimed she had not seen), set out that she was to work as part of a team and was required to “continuously drive to increase sales through add-on sales”, and “support catalogues and supplier promotions by planning, organising and implementing promotional activities to maximise sales.” The position description set out that Ms McConnell was required to “ensure all stock is visually merchandised in a [...] customer friendly, clean and tidy manner.” The position description also stated that the position required the employee to “make an ongoing effort to develop and increase our selling skills, product knowledge and customer care.”

[23] Ms Yuen maintained that Ms McConnell’s unsatisfactory performance impacted upon the other employees in the pharmacy as they were required to rectify errors and to be diverted from the completion of their own responsibilities. In effect, Ms McConnell’s unsatisfactory performance was said to have undermined the productivity the business.

[24] Ms Yuen herself gave no evidence that she had given Ms McConnell any verbal or written warnings. It was Mr Wong who gave evidence to that effect.

[25] Mr Wong’s evidence was to similar effect as Ms Yuen’s evidence, though more detailed as to the effect of the underperformance issues as alleged. This was because Mr Wong was Ms McConnell’s actual supervisor (with Ms Yuen - being primarily based at a nearby pharmacy also owned by VP Health - having only observed Ms McConnell’s conduct closely over a two month period in late 2014, when she had cause to spend a considerable amount of time at the Terry White pharmacy).

[26] Mr Wong contended that Ms McConnell’s alleged failure to make accurate entries into the Controlled Drugs Register Book and Ms McConnell’s alleged failure to encourage or promote the in-house brand of items and other merchandise when handing out prescriptions had been particularly detrimental to the pharmacy.

[27] Mr Wong gave evidence that the Controlled Drugs Register Book is one of the most important records in the pharmacy and it was necessary to ensure it was filled out. Mr Wong explained that it was mandatory for the pharmacy to have a Controlled Drugs Register Book and that it had to be error free and accurately set out the drugs under the control of pharmacy at any point in time. Mr Wong argued that the multiple incorrect entries made by Ms McConnell (and as were tendered in Ms Yuen’s evidence) were unsustainable from a pharmacy business perspective. A pharmacy that does not maintain an accurate register of controlled drugs can be fined under the Health (Drugs and Poisons) Regulation 1996 (Qld).

[28] But Mr Wong’s concerns arose not only from a regulatory point of view, but from a productivity perspective: it took a pharmacist up to an hour to re-count the entire controlled drugs cabinet once an error had been made.

[29] Mr Wong claimed that he had brought his concerns to Ms McConnell’s attention in respect of the Controlled Drugs Register Book in December 2014, January 2015 and February 2015.

[30] Mr Wong did not submit that he gave a warning to Ms McConnell in December 2014. Rather, at that time he only brought the error to her attention, it seems. But in January and February 2015 he claimed he had expressly stated that Ms McConnell could “lose her job here” if she continued to make errors in the Controlled Drugs Register Book.

[31] The copies of the errors were tendered in evidence.

[32] Mr Wong indicated that Ms McConnell had not given close attention to price reduction issues affecting the pharmacy, despite Mr Wong having emphasised the importance of this issue in light of changes to some pharmaceuticals. Mr Wong also claimed that Ms McConnell had dispensed original brands when customers were satisfied with generic brands for their medications. This caused a loss to the pharmacy.

[33] Mr Wong claimed that he reminded Ms McConnell of this problem on “numerous occasions.”

[34] It was also claimed by Mr Wong that he had set a target of promoting “scripts on file”, and this required all staff to achieve a target of 10 signups per week. Ms McConnell was said never to have achieved this target.

[35] Mr Wong claimed that as part of her position description Ms McConnell was required to provide continuous support and assistance to the “schedules counter” and other areas of the business. However, Mr Wong claimed Ms McConnell did not complete the tasks given to her. One example Mr Wong gave was that Ms McConnell was required to place all items in a back office program into categories over a one-month period. Of 40,000 items that required attention, Ms McConnell only attended to 2000. Mr Wong claimed that another employee, who had the same responsibilities as Ms McConnell, had completed 2000 such transactions per day.

[36] Mr Wong also contended that Ms McConnell failed to check expiry dates and to rotate stock as required. He claimed that he had instructed Ms McConnell to perform front shop duties such as rotating stock which was approaching the use by date. However the stock under Ms McConnell's control was not rotated. Mr Wong claimed that Ms McConnell’s general lack of attention to work within the pharmacy of that kind impacted upon other employees who were assigned to complete tasks not carried out by Ms McConnell.

[37] Mr Wong also claimed that Ms McConnell failed to give requisite attention to tagging the baby/infant section of the store, and as a consequence tags printed for some non-recordable drugs were incorrect. Prices were incorrectly altered by Ms McConnell and the pharmacy was required to absorb the resultant costs.

[38] Mr Wong claims further that he offered Ms McConnell assistance and further training but that Ms McConnell declined stating that she was “a very competent dispensary technician.”

[39] Ms Yuen claimed that when Ms McConnell was directed to undertake front shop duties she stated to her (Ms Yuen):

“I’m not employed nor have I ever been employed as a front shop employee.”

[40] Mr Wong gave evidence to the same effect that when she was directed to perform tasks outside of the dispensary, Ms McConnell contended that she was not employed to perform front shop functions.

[41] Ms Yuen and Mr Wong maintained the view that despite having been trained by way of a certificate 3 in community pharmacy, which incorporates training in and carrying out broad based front shop duties in a pharmacy operation, Ms McConnell refused to perform the duties as directed and that were within her competency.

[42] Mr Wong claimed that on 20 March 2015, he undertook a six-month retrospective assessment of Ms McConnell’s performance and as a result of so doing concluded that it was necessary to dismiss Ms McConnell on grounds of unsatisfactory performance within the pharmacy operation. Generally, Mr Wong argued that Ms McConnell had been given ample warnings about concerns in relation to her performance but she had not responded positively and had not taken up any opportunities to avail herself of the assistance and further training offered.

[43] Ms Yuen and Mr Wong held the view that Ms McConnell had performed duties in an unsatisfactory manner and she was dismissed “after careful consideration of the Small Business Fair Dismissal Code.”

Legislative context

[44] Section 385 of the Act provides 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) the dismissal was not consistent with the Small Business Fair Dismissal Code; 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.

[45] The Code applied to the employer at the time of the dismissal and the employer purports to have complied with the Code in effecting the dismissal.

[46] The Code requires - in circumstances other than serious misconduct - that certain procedural steps be carried out to extend procedural fairness to the relevant employee. These include:

• the employee must be warned that if there is no improvement to their conduct or capacity, they could be dismissed;



• the employee must be given a reason as to why their employment is at risk and the reason must be a valid reason based on their conduct or capacity to do the job;



• the employer must give the employee 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; and



• during discussions between the employer and employee about matters where dismissal is possible, the employer must allow the employee to have another person present to assist them.

[47] The onus falls upon the employer to demonstrate compliance with the Code. If compliance with the Code is not made out, the application must be heard subject to s.387 of the Act.

[48] The Code requires, amongst other things, that:

“Procedural matters

During discussions between the employer and employee about matters where dismissal is possible, the employer must allow the employee to have another person present to assist them. However, this person cannot be a lawyer acting in a professional capacity.”

[49] It appears to me on the evidence that Ms McConnell was invited into a performance review meeting and dismissed at that meeting.

[50] Reasonably, Ms McConnell did not apprehend that the performance meeting was to be a meeting at which her employment was to be terminated. Ms McConnell was not informed that this was to be a meeting during there would be “discussions about matters where dismissal was possible”, and she did not elect to have a support person in attendance for that reason.

[51] It is a mandatory requirement of the Code that during discussions between the employer and employee about matters where dismissal is possible, the employer must allow the employee to have another person present to assist them. But here that opportunity was not afforded to Ms McConnell as Ms McConnell was not aware - and not informed - that the discussions were of the requisite kind.

[52] Given this finding, the employer cannot claim the defence of the Code against the application. As such, I must now consider the application pursuant to s.387 of the Act.

Consideration pursuant to s.387 of the Act

[53] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. Section 387 is as follows:

387 Criteria for considering harshness etc.

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

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

(b) whether the person was notified of that; 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

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)

[54] I am satisfied on the evidence I heard from Ms Yuen and Mr Wong that Ms McConnell was given a range of warnings about her employer’s dissatisfaction with her performance, or capacity.

[55] I accept Mr Wong’s evidence in this regard as it was given in a professional manner and without any suggestion that Ms McConnell was dismissed for a capricious or personalised motive.

[56] I also accept that Ms McConnell was employed on the terms set out by Mr Wong (though denied by Ms McConnell) and that her duties were to be performed on a wide front across the pharmacy as directed and consistent with her training in the certificate 3 in community pharmacy.

[57] It seemed also - on the balance of probability - that given the nature of the pharmacy business and its business orientation, employees would be focused on broadly defined functions and a determined retailing push, rather than discrete or insulated dispensary functions. It would be reasonable to expect the pharmacy - re-fitted for the emphasised merchandising role - would employ a person to perform in the context of the business model (with a strong retail focus) and not an older style, dispensary oriented pharmacy.

[58] I also came to question Ms McConnell’s evidence for other reasons as well.

[59] Ms McConnell’s claims that she was dismissed because of the array of issues she raised in her viva voce evidence (and as set out above) appeared to me to be no more than a contrived effort to damage the employer’s professional standing and credibility.

[60] Ms McConnell was unable to establish just how any of these concerns had been raised directly with Mr Wong, and thus how they had become a point of contest with him. The issues had not been raised with Mr Wong, or at least to the point where they had ever become the focus of any serious complaint let alone argumentation. They were not issues that had come between Ms McConnell and Mr Wong and cannot reasonably have provided the context for Mr Wong’s decision to dismiss Ms McConnell - which is contrary to the principal submission supporting their inclusion in the evidence.

[61] Even more so, they were concerns that were poorly made out, did not evidence misconduct, and which were rebutted readily by Mr Wong on reasonable grounds.

[62] In stating that Ms McConnell’s claims were poorly made out I refer to claims such as Mr Wong having used out of date medicines in Webster packs. Ms McConnell had no direct knowledge to substantiate her claim. She had never seen Mr Wong actually conduct himself in such a manner, or place an out of date medicine in such packaging.

[63] In any event, Mr Wong claimed he would never do so, and emphasised that there is no commercial imperative for him to do so. Medicines that are out of date are returned for credit or refund, and he is resupplied (particularly so in respect of the medication concerned) on a daily basis and on short notice where a relevant shortfall arose.

[64] Mr Wong agreed with Ms McConnell that he had directed her to not sort through the “rum bin”, but did so on the basis that there was no point to her doing so. This was because any designated controlled drugs returned were locked away when the returned packages were initially handed in, and the bin when full was merely handed over to the relevant authority. The response was that Ms McConnell, in short, was wasting her time.

[65] Mr Wong contended that he did indeed instruct that cups used in methadone dispensing be re-used. However, he argued that he so directed staff where the small cups had been used for extracting the methadone from a large bottle, where-after the methadone so collected was dispensed by syringe into a further cup and diluted for the client’s consumption. No cups used by clients were ever re-used or intended to be re-used. Mr Wong believed Ms McConnell may have had a preference for one size of cup over another, but that was an irrelevant concern.

[66] Mr Wong also set out the process by which methadone was apportioned and diluted for “takeaway” by way of vials (or bottles) of various sizes. Nothing untoward could be derived from Mr Wong’s description of the professional practice.

[67] Mr Wong did not resist the claim that he did not seek to utilise green labels on medicine packages that were on their final repeat. He merely argued that staff had been instructed to inform customers verbally that their prescription had run out, and to use a highlighter to indicate the status on the prescription. This issue was of no significance for the proceedings, and was a claim without substance.

[68] Mr Wong also recalled the occasion on which Ms McConnell had brought to his attention an instance where a customer had made a complaint about the drugs packaged for him (or her). Mr Wong had taken the complaint seriously and investigated how it had come to pass. Ms McConnell had nothing further to add to this matter. Again, Ms McConnell’s claim was without any substance whatsoever.

[69] Mr Wong held that the use of the shopping centre staff toilets was reasonable as employees used the opportunity to obtain coffee etc on breaks. Ms McConnell had been treated in the same manner as other staff in this regard. Mr Wong denied he had ever instructed and that he would ever instruct Ms McConnell only to access the staff toilets on a designated break. This issue is of no consequence for the application.

[70] In all, Ms McConnell’s claims about Mr Wong’s alleged misconduct were unable to be made out, even at a superficial level. The fact Ms McConnell was prepared to make such ill-founded claims reflects very poorly indeed upon her judgment and motivation, and provides an insight into her particularly negative views about her employer’s personal and professional conduct.

[71] Importantly, the fact Ms McConnell was prepared to promote such unfounded and poorly made out claims brings into question the overall probity of her evidence and its genuineness. It provides added reason for me to prefer Mr Wong’s evidence over that of Ms McConnell.

[72] That aside, the range of warnings and advices given to Ms McConnell covered such matters as incorrect approaches to pricing through to inaccurate entries into the Controlled Drugs Register Book. The warnings and advices were not isolated and they continued over some time.

[73] The employer reasonably had significant concerns with Ms McConnell’s performance as an employee and its impact on its productivity and business objectives.

[74] When the March performance review had come around, Mr Wong took a comprehensive view of Ms McConnell’s performance as an employee. He took into account the errors in December 2014, January 2015 and February 2015 she made in the Controlled Drugs Register Book (which resulted in two express warnings that Ms McConnell’s employment was in jeopardy). Mr Wong also had regard to the various other performance issues in relation to up-selling generic brands and achieving script sign-up targets (tasks associated with the dispensary role). Ms McConnell’s performance of her duties did not, in Mr Wong’s mind, conform to the retail pharmacy business model, and had lacked the eye for accuracy and detail required (from pricing to drug register entries).

[75] When I evaluate the aggregated circumstances objectively, I conclude that Mr Wong and Ms Yuen had established a valid reason for Ms McConnell’s dismissal at 20 March 2015.

Whether the person was notified of that reason

[76] Ms McConnell was not notified prior to her dismissal of the reason for her pending dismissal. Ms McConnell was informed of the reason only at the time she was dismissed.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[77] Ms McConnell was given warnings and otherwise given opportunities to improve her performance over a period of time involving a number of interactions with her employer. Ms McConnell’s employer offered to assist her to improve her performance.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[78] This was not a set of circumstances in which the employee, Ms McConnell, was subject to an unreasonable refusal by her employer to allow her to have a person present at the dismissal discussions. Equally, there is a measure of harshness in so far as the employer did not advise Ms McConnell of its intentions when it called her to a meeting in the pharmacy clinic room. This is a matter that I have taken into account for the purposes of s.387(h) of the Act below.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[79] Ms McConnell was given warnings from her employer about its dissatisfaction with her performance. Mr Wong’s evidence was to this effect. Mr Wong’s evidence, which I have accepted, was to the further effect that he had offered Ms McConnell assistance to improve her performance more generally, but she had not availed herself of such invitations.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[80] The employer in this application is a small business employer for the purposes of s.23 of the Act.

[81] It is reasonable to me to assume that the small size of the enterprise impacted on the procedures used in effecting Ms McConnell’s dismissal. Ms Yuen and Mr Wong fulfilled multiple roles within the enterprise including managing discrete relationships with their employees.

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

[82] The employer was a small enterprise which had no dedicated human resource management specialists or expertise at its disposal. It seems reasonable to me to presume that the absence of such resources provides an explanation for the procedure adopted for purposes of effecting the dismissal. That said, it was suggested (only) in the proceedings that the employer had access to HR resources through its franchise relationship. Such resources are not resources dedicated to the enterprise.

Any other matters that the FWC considers relevant

[83] I have referred above to the fact that Ms McConnell was not provided with notice that she was attending a meeting at which her employment would be terminated, and that she did not have any opportunity to seek the support of any third party. There is a measure of harshness in the procedures applied by the employer. Of course, however, the size of the employer and its absence of dedicated human resource expertise would provide a reasonable explanation for the lapses in procedural fairness that attended the dismissal decision (though that is little consolation for Ms McConnell). I do not consider the size of the business and the absence of dedicated HR resources to be factors, however, that discharge all obligations on the part of an employer to afford an employee due procedural fairness.

Conclusion

[84] Though the employer had a valid reason for the dismissal, I consider that the process of dismissal - by which Ms McConnell was dismissed at a performance review without prior notice and without any actual opportunity to defend herself against the claim made - to have been harsh. In all, I consider the dismissal to have been harsh, unjust or unreasonable for that reason in particular.

[85] As a consequence of having so found, I will consider the appropriate remedy.

REMEDY

[86] Section 390 of the Act reads as follows:

Division 4—Remedies for unfair dismissal

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.

[87] Ms McConnell 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 a discretion as to whether she can be reinstated. 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.

[88] In the circumstances of this matter it is not appropriate that Ms McConnell be reinstated or reemployed with the employer. There was a valid reason for her dismissal and the employer had sound reasons to be concerned with her performance as an employee. Ms McConnell was not receptive to being provided assistance either - which is the evidence I have accepted by way of Mr Wong. Ms McConnell’s range of unfounded and poorly made out allegations against her employer, and her level of performance whilst an employee give me further grounds still to be satisfied that reinstatement or re-employment would not achieve a productive or cooperative result.

[89] Because of my findings in this regard I now turn to consider compensation.

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

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

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

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

(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

(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

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

[90] In respect of the above matters that I must take into account I find as follows:

The effect of the order on the viability of the employer’s enterprise

[91] There is no evidence that any order I might make for compensation would in some manner affect the employer’s viability.

The length of the person’s service with the employer

[92] The period of employment with the employer was for a short period and it has at best a neutral effect on my disposition as to whether or not to make an order and the terms thereof.

The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[93] On a reasonable assessment of the evidence, Ms McConnell would not have remained an employee for other than a particularly short period. I have found above that the employer had a valid reason for Ms McConnell’s dismissal. This is a distinguishable aspect of this case and provides a foundation for a finding that Ms McConnell’s employment would not have persisted for any lengthy period.

[94] Ms McConnell had been subject to counselling and warnings in respect of her performance as an employee. Mr Wong had counselled her on three occasions - twice with express warnings - about the accuracy of her entries into the Controlled Drugs Register Book (which was an important instrument in the employer’s business) and there were a number of other discussions about the effort with which Ms McConnell pursued the business goals (in respect of up-selling etc).

[95] Ms McConnell had also rejected an opportunity for assistance to improve her performance and, through that, her contribution to the business effort.

[96] Though it is not required strictly for the purposes of my finding above, Ms McConnell also made a range of poorly-founded allegations about her employer’s conduct, which I have set out above. These were matters, I add, that Ms McConnell claimed had been “always on my mind.”

[97] As I mentioned in my discussion of her evidence, as it was, Ms McConnell viewed her employer in a negative light and questioned the pharmacy’s professional conduct, all without foundation.

[98] Such were the circumstances that an arguable case could be made out that no compensation should be awarded.

[99] Considering all the circumstances, however, and having had the benefit of hearing the matter, Ms McConnell in my view would have only remained an employee for a matter of a further four weeks before such time as the employment relationship would have become wholly unviable. Such were the forces at work in respect of Ms McConnell’s performance, that Ms McConnell’s employment had become particularly tenuous by March 2015.

[100] Again, in the circumstances, the remuneration that Ms McConnell would have received, or would have been likely to receive, if she had not been dismissed is the equivalent of four weeks of her usual wages.

[101] On review, I consider this to be an amount that is also appropriate in all the circumstances of the case (see the Full Bench decision in Smith v Moore Paragon (2004) 130 IR 446 PN 32 - an authority recently upheld by Full Bench decision in [2015] FWCFB 4171).

The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[102] Ms McConnell in my view had made a reasonable effort to mitigate her losses given the constraints in respect of her availability. Nothing in the employer’s submissions persuaded me to the contrary.

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

[103] Ms McConnell appears to have earned no further substantive income since her dismissal.

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

[104] This is not a matter that requires any consideration as it is irrelevant to these proceedings.

Any other matter that the FWC considers relevant

[105] I make no deduction for contingencies as I do not see them as being relevant in this matter.

[106] Section 392(3) of the Act provides as follows:

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

[107] I do not discern in the evidence any misconduct on the part of Ms McConnell (which is distinguishable from performance-related issues).

[108] Section 392(4) of the Act provides as follows:

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

[109] My order for compensation makes no allowance for the above proscribed matters or considerations.

[110] Section 392(5) of the Act provides as follows:

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

[111] Section 392(6) of the Act provides as follows:

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

[112] The order that I propose to make does not need to take into account the statutory cap.

[113] Section 393 of the Act provides as follows:

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.

[114] The employer has made no application in the course of these proceedings to pay any amount I may order to be paid as compensation in instalments. The employer may make such an application within 72 hours of this decision being published.

CONCLUSION IN RELATION TO REMEDY

[115] I order that the employer pay to Ms McConnell an amount which is the equivalent of four weeks of her usual pay subject to taxation as might ordinarily apply.

[116] The employer must pay this amount to Ms McConnell’s usual bank account within seven calendar days of the date of publication of this decision, subject to any application under s.393 of the Act.

[117] An order to this effect will issue along with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr H. Day, Solicitor, for the Applicant

Mr A. O’Connor, Solicitor, for the Respondent

Hearing details:

Brisbane

2015

16 June

Printed by authority of the Commonwealth Government Printer

<Price code C, PR568410>