Mrs Zaklina Kaskarevska v Fonterra (Brands) Australia Pty Ltd
[2015] FWC 7965
•20 NOVEMBER 2015
| [2015] FWC 7965 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Zaklina Kaskarevska
v
Fonterra (Brands) Australia Pty Ltd
(U2015/4422)
COMMISSIONER WILSON | MELBOURNE, 20 NOVEMBER 2015 |
Application for relief from unfair dismissal.
[1] Ms Kaskarevska was employed by Fonterra Brands (Australia) Pty Ltd (Fonterra Brands) at its Bayswater production site in suburban Melbourne for slightly less than 10 years, between June 2005 and March 2015.
[2] She was dismissed on 13 March 2015 for alleged misconduct arising out of a single incident in the Yang Room, in which she worked, which occurred on Wednesday, 4 March 2015.
[3] For the reasons set out below, I find that Ms Kaskarevska’s dismissal was not an unfair dismissal and that her application must therefore fail.
[4] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters to be considered before considering the merits of the application. Neither party put forward that any of these initial matters required particular consideration. In relation to those elements, I find that Ms Kaskarevska’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time she was dismissed she was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.
BACKGROUND
[5] The Yang Room is a relatively small production room with high hygiene standards. On the day on which the alleged behaviour took place, the room was producing a “munchables” product targeted at young children and which includes within it cheese and biscuits, ham and sweets. The composition of the product, coupled with the consideration of the target market, requires that strict hygiene standards be observed. For example, the room is temperature controlled to less than 12oC, which is for reason of the risk of salmonella contamination associated with ham. 1 There are also stringent requirements for date and time-stamping of each item produced.
[6] On the basis of video surveillance evidence provided to the Commission, the Yang Room appears to have between 8 to 12 employees working within it at any one time, and the production line is organised in a rectangular workflow open at the right-hand end, rather like a horseshoe. The component elements of the product are inserted into dispensing trays at the start of the production line, toward the bottom-right of the screen. The product then moves in a clockwise direction around the three sides of the rectangular production line. The bottom and top sides of the rectangular production line are longer than the left side.
[7] The production line takes up a large part of the room, and there does not appear to be much space between the line itself and the walls of the room or equipment that is stacked along the walls of the room. At the end of the bottom side of the rectangle the product moves through a coder printer and is date and time-stamped. The product then moves through the second and third sides of the production line. On the top and final side of production line, amongst other things, the product is sealed and then packaged into larger boxes.
[8] One of the responsibilities of employees working on the top and final side of the production line is to inspect the product to ensure it has been correctly made, and amongst other inspections, ensure that it has been date and time-stamped.
[9] The video surveillance evidence that was tabled within the proceedings was taken from an aspect that appears to be at the bottom right-hand corner of the rectangular shaped room, with the open end of the rectangular shaped production line, which is also the start of the production line, being closest to the camera. The coder printer referred to above, which date and time stamps the product, is at the bottom left-hand corner of the screen.
[10] The allegation made against Ms Kaskarevska is that on Wednesday, 4 March 2015, when she was working in the Yang Room, she moved behind the coder printer and damaged a cable at its rear, causing the printer to malfunction, so that as products passed through it they would not be date and time-stamped.
[11] It is said about this action, and I accept, that a failure by the production line to date and time stamp the product could have serious consequences for Fonterra Brands. If a product was circulated into the marketplace that was not properly date and time-stamped it would need to be recalled, with consequential significant financial costs for Fonterra, and potentially an associated loss of reputation because of the need for a recall.
[12] Ms Kaskarevska denies completely that she damaged the coder printer or that she was in any way responsible for the failure of the printer to print as it was supposed to.
[13] Having been dismissed for misconduct, the Commission is first required to find whether on the balance of probabilities the alleged misconduct actually occurred. 2 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.3 In such case, the strength of the evidence needed to establish a fact on the balance of probabilities ‘may vary according to the nature of what it is sought to prove’.4 More serious allegations may require stronger evidence.
[14] The allegation made against Ms Kaskarevska by Fonterra Brands is set out as follows in a letter in which she was invited by Fonterra to attend a discussion about a breach of company procedure;
“On Wednesday 4th March 2015 at 1.05:16pm, production on the Yang line was disrupted due to the printer cable being pulled out of the line printer unit. As you were on rotation working in that specific area you are requested to attend an interview to establish your movements on the production line at that time.
Pursuant to Fonterra's people management policy it is necessary that we investigate the facts surrounding these allegations to determine an appropriate course of action.
We need to make you aware that if it is found that your action and behaviour are in breach of Fonterra policies and guidelines, it may result in disciplinary action which could include termination of your employment.” 5
[15] The video surveillance evidence provided to the Commission shows Ms Kaskarevska in the Yang Room in operation at around 1:05 PM on 4 March 2015. The camera perspective, as referred to above, is from the bottom right-hand corner of the room. Ms Kaskarevska can be seen working initially on the bottom side of the rectangular line. She then moves in a clockwise direction around the line; firstly walking along the bottom side of the rectangle from right to left on the screen. She turns the corner and moves behind the coder printer, and then walks along the furthermost side of the line, from bottom to top on the screen. She turns the third corner and moves from left to right, squeezing past a co-worker in the process.
[16] At this point, to the left of a machine referred to as a sleever, she inspects the product for a few moments, and then moves to the right of the sleever. After a few more seconds of inspecting the product, she begins to reject the product coming through the machine and raised the alarm. Ms Jessica Cooper, who also worked in the Yang Room, recalls how the alarm was raised as follows;
“10. Later that day, I was at the operator station filling out paperwork. Ms Kaskarevska came over and placed some units on the desk. She didn't tell me what it was about. I forgot about them.
11. I was about to start the process for cleaning the sealing head. I walked over to get the trolley. Someone yelled out to stop the line and then someone yelled out that there was no ink on the units. I think that was Ms Kaskarevska.” 6
[17] Ms Ianetta May, who also worked in the Yang Room with Ms Kaskarevska and Ms Cooper, corroborates what occurred;
“21. Ms Kaskarevska yelled out that there was no ink on the units. As soon as I heard her yell that, I took the units off the line so they didn't go through.
22. Ms Cooper stopped the line.
23. The line was running prior to that.” 7
[18] Following it being realised that the coder printer was not performing its task, Ms Cooper endeavoured to rectify the situation, and in the course of doing so noticed a problem with the printer cable;
“12. I checked all the usual things that might cause the printing to stop, refilled the solvent which was low but still enough to keep printing. I then restarted the line and was told again the printer still wasn't working. The line was stopped a second time and I checked the back of the printer and noticed a cable connecting to the printer was off and the casing was all coming off it. I tested the unit and tried to put it all back together but couldn't get the casing back together as it was all broken.
13. Around that time Ms Callard came back from her break and I asked her to look at it. We were able to put the connection back although it was still broken and we got the line running again.
14. The kind of damage to the cable didn't look right; we couldn't work out how that could have happened. It was at the back of the machine. Ms Callard called Mr Bluett and I didn't think of it again.” 8
[19] Shortly before 1:30 PM, the Production Supervisor, Mr Brian Falvo, was approached by a supervisor, Mr Bluett, about a concern there had been damage to the coder printer in the Yang Room. While Mr Falvo gave evidence in this matter, Mr Bluett did not. Mr Falvo’s recollection is that he was told there had been damage to a housing around the printer cable, and he was asked to review some video surveillance evidence of what had happened in the room shortly before the problem with the printer had been identified. Mr Falvo’s witness statement identifies what he saw, and the belief he formed that Ms Kaskarevska had damaged the printer cable housing;
“25. I reviewed the video … (at 13.05:08pm) saw Ms Kaskarevska leave the biscuit station, pass behind the printer with her right arm raised and a backward arm movement (at 13.05:16pm). Ms Kaskarevska then continued to walk along the back of the line glancing over her right shoulder back at the printer (at 13.05:19). Ms Kaskarevska then picked up a unit from the line (at 13.05:27), before the sleever, checked it and placed it back down. Ms Kaskarevska continued to walk around the line to arrive at packing position (at 13.05:38). Ms Kaskarevska took over from the previous operator and continued packing 2 boxes packing units and Ms Kaskarevska continued packing coded units until she identified unmarked (no date/code) units and called out to the Operator 'no code' (at 13.06:16).
26. Upon review of the footage, I did not observe anyone else in the area prior to the printer coder being disabled (at 13.05:16) and to my knowledge at that time were no issues reported with the printer coder on the preceding days of operation.” 9
[20] Mr Falvo subsequently reported the incident to the Fonterra Brands Human Resources Manager and initiated an investigation into the circumstances of the matter.
[21] Following the report of the incident having been made to Fonterra Brands’ Human Resource Manager, Ms Kaskarevska was notified of a request to meet with her about the incident. She was told the following about the subject of the meeting to be held;
“On Wednesday 4th March 2015 at 1.05:16pm, production on the Yang line was disrupted due to the printer cable being pulled out of the line printer unit. As you were on rotation working in that specific area you are requested to attend an interview to establish your movements on the production line at that time.” 10
[22] Ms Kaskarevska was further informed that it was necessary for the company to investigate the facts surrounding the allegations and that she faced disciplinary action which might include termination of employment in the event that it was found her action and behaviour was in breach of the Respondent’s policies and guidelines. Ms Kaskarevska was also advised that she was entitled to bring with her a support person to the meeting. Ms Kaskarevska was further informed that she would be stood down on full pay pending the outcome of the investigation.
[23] When the meeting took place on Friday, 6 March 2015, Ms Kaskarevska attended with a representative of her union. After having had the allegations put to her, Ms Kaskarevska denied that she had any knowledge of the problem that had occurred with the coder printer or that she was in any way responsible for what had occurred. The matters discussed within the meeting were recorded in verbatim notes provided in evidence to the Commission. The following notes record the exchange between Ms Kaskarevska (ZK) and Ms Wood (JW)
“JW: Zaklina, do you recall alerting the operator to stop the line at 1.06pm?
ZK: Yes I do.
When I went to the packing station, the machine had already stopped. Linda was on the line before me, I had to grab the packet so I could check it. I saw that the print was on the opposite side. I said, "there is no print on this unit" I called out that there was no date. I grabbed the four units and put them on the side.
JW: Can you tell me who stopped the line?
ZK: The machine operator, Jess.
JW: Can you tell me what was identified as the cause of the stoppage of the line?
ZK: No. They never tell us what the cause is. They stop all the time. I know she was cleaning the forming station.
JW: According to the shift report the line was stopped for approx 5min on this occasion specifically due to a sealing head clean in the seconds after you had walked past the back of the printer. After cleaning the sealing head the line was restarted and it was identified that the print was still not on the unit. Upon investigation of the issue, the printer was thoroughly checked and it was found that the printer sensor cable had been damaged and connections to the machine damaged. Prior to the breakdown at 1.06pm the printer was in full operation and no issues had been reported on that day or prior shift reports.
In the minute prior to the line stoppage, you are identified on the security camera as waking behind the printer and your arm rises to waist level. Can you please explain this action?
Jo presented the video surveillance evidence.
ZK: I don't know. I don't understand how I can explain to you.
I never stopped, not even for one second. I always hold my arm like that because I have had cancer and I have had glands removed and so it is easier and comfortable for me to hold my arm like that. If you see me, I am always holding my arm like this, at my waist. Every 15 minutes I have to 'click' my shoulder into place.
I didn't pull it. I've never ever done any damage to the line. Why would I do this to the line?
Jo presented the photographs of the printer cables.
ZK: Darling, believe me I didn't do it. If I done it, that's alright, give me the sack. I'm always moving my hands. Why would I do damage to the factory. How am I going to go walking behind to damage without stopping.” 11
[24] Consistent with her denial of having had any knowledge or responsibility for the incident after having been provided with the video surveillance evidence, Ms Kaskarevska said that she did not understand how the damage could have occurred and did not know how she could explain it to Fonterra Brands.
[25] After the above meeting took place, Fonterra Brands undertook further investigation into the allegations made against Ms Kaskarevska. In particular, interviews were conducted with a number of the people who were present in the room at the time or had some connection with it. These included Ms Cooper and Ms May, both of whom are production operators and gave evidence in these proceedings. In addition, interviews were conducted with Ms Callard, who was a production operator, and Mr Bluett, who is a supervisor, however neither of these employees gave evidence to the Commission.
[26] A further meeting was conducted with Ms Kaskarevska and her union representative on Friday, 13 March 2015 at which time the investigation findings were provided and a response invited. Following discussion of those matters within the meeting, and after a short break to consider its position and to consult its General Manager HR, Fonterra Brands decided it would be appropriate to dismiss Ms Kaskarevska and that decision was communicated to her both orally and in writing.
LEGISLATION
[27] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009 (the Act), which 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 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
[28] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the legislative factors set out earlier.
(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)
[29] The reason put forward by Fonterra Brands for Ms Kaskarevska’s dismissal is that she “wilfully and deliberately caused damage to company equipment specifically to the coder printer in the Yang Room”. 12 It formed that view after having reviewed the circumstances of the failure of the coder printer and having taken into account video surveillance evidence of the Yang Room and interviews with other people within the room, or with responsibility for the room, at the relevant time.
[30] Fonterra Brands’ reason for dismissal is crystallised in its investigation findings, provided to Ms Kaskarevska shortly prior to her dismissal on 13 March 2015. Interviews with other people in the room at the time confirmed the company’s basic construct of timing and that the printer had been working acceptably prior to Ms Kaskarevska raising the alarm, however those interviews did not bring forward anyone who had seen Ms Kaskarevska damage the printer.
[31] Fonterra Brands’ case that Ms Kaskarevska had undertaken serious misconduct is therefore based largely upon its interpretation of the video surveillance evidence as well as her responses to the company in the course of its investigations, both about the incident with the printer itself, as well as some surrounding circumstances.
[32] In particular Fonterra Brands point to two parts of the video surveillance evidence which it says demonstrate Ms Kaskarevska damaging the printer. The Respondent further argues her inability to explain her actions at a later point in turn points to her being responsible for the damage to the printer.
[33] As explained earlier, Ms Kaskarevska, as seen in the video surveillance evidence, moves clockwise around the production line from the bottom-right of the screen to the top-right. The two elements relied upon by Fonterra Brands arise at different points of the short journey undertaken by Ms Kaskarevska.
[34] In relation to the first element of the video footage referred to above, as Ms Kaskarevska moves past the coder printer, the company alleges her arm rises to waist level. Ms Kaskarevska is reported as having said the following during the investigation about that allegation;
“I never stopped, not even for one second. I always hold my arm like that because I have had cancer and I have had glands removed and so it is easier and comfortable for me to hold my arm like that. If you see me, I am always holding my arm like this, at my waist. Every 15 minutes I have to 'click' my shoulder into place.” 13
[35] In contrast the understanding achieved by Fonterra Brands from its investigation is the following;
“Upon review of the footage, at 13.05:16 Zaklina's forearm raises to a right angle as she walks towards the printer. As Zaklina proceeds behind the printer her elbow is observed to jar backwards. Within 5-6 steps past this point, Zaklina looks over her right shoulder (location 3) back to the direction of the printer and proceeds to walk around the line.” 14
[36] The second element relied upon by Fonterra Brands from the video surveillance evidence is that at the point Ms Kaskarevska is at the top of the production line she first inspects a product at a point to the left of the sleever, at the top left-hand side of the screen, with Fonterra Brands alleging that she “picked up the unit and looked at it and replaced it back on the line” before progressing to a point to the right of the sleever and then, at the packing point of the process, “picked up what appears to be the same unit and [flagged] it as having no print”. The Respondent draws from this the implausibility of the circumstance whereby Ms Kaskarevska would have not identified on the first occasion that she picked up the unit, to the left of the sleever, as having no print on it; replaced the unit, walked past the sleever, and then picked up the unit at that time identifying it as having had no printing on it.
[37] In the hearing of this matter, the Respondent relied upon two additional matters which it says adds to the implausibility of Ms Kaskarevska’s evidence.
[38] The first of those is that having moved past the coder printer, about three seconds afterwards, she then looks over her right shoulder back towards the coder printer. The second is the question why, faced with a very tight walking space in a crowded production room, Ms Kaskarevska walked from the bottom right of the rectangular shape production line to the top right, she did not simply take the shortest route which would have been to walk across the open and less crowded right-hand side of the room, but instead walked around the three sides of the rectangular line.
[39] In considering whether misconduct as alleged by Fonterra Brands actually occurred, there is a necessity for the Commission to be properly satisfied of the proofs of the conduct, but without applying a standard of proof higher than the balance of probabilities. 15 It is also relevant in this particular case for the Commission to take into account the need for honesty on the part of the Applicant during the course of an investigation.16
[40] The evidence in this matter allows that the coder printer in the Yang Room had been working as required prior to Ms Kaskarevska walking from the starting position of the biscuit station, to the rear of the printer and then passing by another worker to inspect product at the packing position. That is, the evidence shows that the problem with the printer commenced at some point during the short journey undertaken by Ms Kaskarevska.
[41] A consideration of the evidence presented in this matter leads to the following findings, made on the balance of probabilities;
- Damage to the coder printer cable caused the printer to stop date and time-stamping the Yang Room products shortly after 1 PM on Wednesday, 4 March 2015; and
- The nature of the product being prepared in the room, together with the fact that the room itself is a temperature controlled “high care” production environment, means that it was important for production to be stopped once the problem with the printer was identified. A failure to do so, or a failure to identify the production defect, may well have led to significant commercial or legal consequences for Fonterra Brands.
[42] Ms Cooper’s evidence is that the coder printer had not malfunctioned for reason of the solvent being too low, 17 and that instead it had malfunctioned because of the damage to the cable connection. The evidence of both Ms Cooper and Mr Falvo is that damage to the cable housing would cause the printer to cease working,18 with Ms Cooper’s evidence being that she did not think that the damage caused to the printer cable could have been by accident.19 Ms Cooper’s evidence was also that while the housing of the actual cable was pulled apart, there was no actual electrical problem as such.20
[43] A careful review of all the evidence before the Commission allows a finding that, on the balance of probabilities, Ms Kaskarevska did damage the coder printer as she moved past it, causing it to malfunction and thereby giving her reason to call a halt to production on the line. The coder printer was apparently working properly prior to Ms Kaskarevska passing by it. The company’s evidence demonstrates that it takes a production item about the same amount of time to pass from the coder printer to the point of inspection at which Ms Kaskarevska called a halt to the line as it took for Ms Kaskarevska to walk that distance and in fact raise the alarm. As a result, I am satisfied on the balance of probabilities that the coder printer failed at about the same time that Ms Kaskarevska moved past it.
[44] Further to this, two things combine for me to be satisfied that Ms Kaskarevska damaged the coder printer;
- At the point Ms Kaskarevska moved past the coder printer her right arm moves perceptibly higher than the point at which it had been and appears to jerk. Such movement would be consistent with a person making contact with and damaging a cable at the rear of the printer.
- A few seconds after moving past the coder printer, Ms Kaskarevska looks markedly over her right shoulder back towards the printer. Such movement would be consistent with a person checking something at a point that they had recently moved past.
[45] Ms Kaskarevska’s evidence is contrary to these findings, denying that she caused the damage, or that the actions ascribed to her were for the reasons advanced. She denies looking back at the coder printer, having walked past it, 21 and she denies having taken the long way around when she walked clockwise around the production line, instead of anti-clockwise.22 I am satisfied that these denials were intended by her to avoid agreeing to any actions that might point to her having damaged the company’s equipment.
[46] I am satisfied that the combination of these matters has properly led Fonterra Brands to form a view that Ms Kaskarevska damaged the coder printer as alleged. I am further satisfied within the context of Fonterra Brands’ business, that such damage, if unnoticed, had the potential to harm the company’s reputation and business and, if noticed, then to at least delay Fonterra’s production schedule. Fonterra Brands have made out their case that Ms Kaskarevska wilfully and deliberately cause damage to its equipment. As a result I am satisfied that these factors amounted to a valid reason for Ms Kaskarevska’s dismissal.
(b) whether the person was notified of that reason
[47] The evidence discloses that Ms Kaskarevska was notified of the allegations against her; the investigation the company undertook; and its reasons for her termination.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[48] The evidence in this matter is that Ms Kaskarevska was notified in writing of the allegations against her and invited to a meeting to respond to those allegations on 6 March 2015. The evidence provided by the Respondent, in the form of the notes of the record of interview, disclose that the allegations about Ms Kaskarevska’s conduct were properly and fairly agitated and that she was given an opportunity to respond to the allegations.
[49] It is also the case that at the point the company had concluded its investigation into Ms Kaskarevska’s conduct, on Friday, 13 March 2015, it reported to Ms Kaskarevska the findings of its investigation and gave her opportunity to respond to them. The evidence also discloses that Ms Kaskarevska availed herself of that opportunity to have any further matters taken into account by Fonterra Brands.
(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
[50] Ms Kaskarevska was afforded an opportunity to have a representative from her union attend both the initial allegations meeting on Friday, 6 March 2015 and the further meeting on Friday, 13 March 2015, and the evidence indicates that such a representative did in fact attend.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[51] The reason I have found for Ms Kaskarevska’s dismissal, as set out above, is a single point of serious misconduct on her part, namely the damage that I have found that she caused to the coder printer in the Yang Room. However it is relevant to note that Fonterra Brands also took into account in forming its decision to dismiss Ms Kaskarevska aspects of her prior employment record, which included; 23
- Several formal and informal performance management meetings with her in the 18 months prior to dismissal being for the purposes of addressing “issues with behaviours, performance and non-conformance to process standards”;
- Two prior performance warnings from September 2013 and October 2014, being for matters unrelated to the misconduct I have found; and
- Generalised concerns about Ms Kaskarevska’s behaviour in the workplace, including as recently as the day prior to 4 March 2015 as well as the morning of 4 March 2015 itself (being well prior to the incident with the coder printer).
(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
[52] The evidence discloses that Fonterra Brands is a large and sophisticated employer with access to significant resources. There is no evidence that would suggest that its size may have impacted upon the procedures followed in effecting Ms Kaskarevska’s dismissal.
(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
[53] The evidence also discloses that Fonterra Brands has access to significant dedicated human resource management specialists and expertise and that such expertise was employed in relation to its decision to dismiss Ms Kaskarevska.
(h) any other matters that the FWC considers relevant
[54] I do not find any other matters that are relevant and which require being taken into account.
[55] Having considered in detail all of the criteria within s.387 of the Act I find that there are no matters that would cause me to find that irrespective of there being a valid reason for the dismissal of Ms Kaskarevska, her dismissal was otherwise harsh, unjust or unreasonable.
CONCLUSION AND ORDER
[56] After consideration of the foregoing issues, I find that Ms Kaskarevska was not unfairly dismissed within the meaning of the Act.
[57] As a result, I must now dismiss her application and an order to that effect will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
Ms Z Kaskarevska on her own behalf
Mr R Carpenter for the Respondent
Hearing details:
2015.
Melbourne.
19-21 August.
Final written submissions:
2015.
18 September.
1 Respondent’s Outline of Submissions [22].
2 Edwards v Giudice (1999) 94 FCR 561 [6]‒[7].
3 Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.
4 Ibid.
5 Exhibit R2Witness Statement of Joanne Wood Attachment JW-2.
6 Exhibit R3Witness Statement of Jessica Cooper [10]-[11].
7 Exhibit R4 Witness Statement of Ianetta May [21]-[23].
8 Exhibit R3 [12]–[14].
9 Exhibit R1 Witness Statement of Brian Falvo [25]–[26].
10 Above n 5.
11 Exhibit R2 Attachment JW-3.
12 Ibid Attachment JW-8.
13 Exhibit R2 Attachment JW-7.
14 Ibid.
15 Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.
16 Streeter v TelstraCorp Ltd (2008) 170 IR 1.
17 Exhibit R3 [12].
18 Transcript PN1070, PN1735.
19 Ibid PN1744.
20 Ibid PN1817.
21 Ibid PN315–28, PN342–43.
22 Ibid PN 308–12.
23 Exhibit R2 [8]-[14], [36]–[39]; Exhibit R3 [8]-[9].
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