Ms Amy Field v The Returned & Services League (Mount Gambier Sub-Branch & Memorial Club) Inc T/A Mount Gambier Community RSL
[2011] FWA 5930
•1 SEPTEMBER 2011
[2011] FWA 5930 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Amy Field
v
The Returned & Services League (Mount Gambier Sub-Branch & Memorial Club) Inc T/A Mount Gambier Community RSL
(U2011/5458)
DEPUTY PRESIDENT BARTEL | ADELAIDE, 1 SEPTEMBER 2011 |
Section 394 application for an unfair dismissal remedy
Introduction
[1] This decision concerns an application by Amy Field (the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act), alleging that she was dismissed by the respondent and seeking an unfair dismissal remedy. The Returned & Services League (Mount Gambier Sub-Branch & Memorial Club) Inc t/as Mount Gambier Community RSL (the respondent or employer) disputes that a dismissal took place. The hearing was held in the Mt Gambier Courthouse.
[2] The applicant was represented by Samantha Harvey of the South East Community Legal Service, having been granted permission to be represented by a lawyer or paid agent pursuant to s.596(1) of the Act. 1 Timothy Kenny, the General Manager for the respondent, represented the employer. Mr Kenny was the person whom the applicant alleged had dismissed her and as a result Mr Kenny also gave evidence, leading to some difficulties in the presentation of the case for the employer as the line between evidence and submissions became blurred. Nonetheless, the Tribunal gave appropriate assistance where necessary and I am satisfied that the relevant facts were placed in evidence.
[3] The respondent employed 28 employees as at the date of the last shift worked by the applicant and therefore is not a small business employer. 2 There is no dispute that the applicant meets the requirements of s.382 of the Act and is protected from unfair dismissal. It is also uncontroversial that the s.394 application was made within the 14-day period and it is not asserted that the alleged dismissal was a case of genuine redundancy.
[4] A broad overview of the respective cases is as follows. The applicant was engaged as a Food and Beverage Attendant. She contends that at a meeting on 14 February 2011 Mr Kenny dismissed her from her full time position and that the dismissal lacked both procedural and substantive fairness. The meeting took place as a result of incidents that had occurred in the applicant’s shifts on the previous Friday 11 February. As a result of the dismissal the applicant said that she lost trust and confidence in the employer and for this reason did not undertake casual shifts subsequently offered to her by the employer. The casual hours that were offered to her were said to be significantly less than the hours she was working as a full time employee and were not guaranteed to continue in any event.
[5] The respondent submitted that the applicant was employed as a probationary employee in the full time position and that it had reasonable grounds to be dissatisfied with the applicant’s performance and to end the probationary period. Mr Kenny contended that the applicant had behaved inappropriately on 11 February 2011 and that her behaviour reflected a pattern of conduct for which she had previously been disciplined. It was further submitted that casual shifts offered to the applicant after 14 February were declined and no dismissal has occurred.
[6] As this summary indicates, the initial matter to be determined is whether a dismissal took place and if so, to then determine whether the dismissal was harsh, unjust or unreasonable. For convenience the relevant facts going to both issues will be dealt together.
[7] It is appropriate to record at this point that the applicant portrayed the workplace as one where discord between staff was rife and that Mr Kenny’s inappropriate management style had contributed to this situation. The applicant alleged that Mr Kenny made inappropriate remarks of a sexual nature to her in the course of her employment and otherwise acted in a non-professional manner in dealing with staff generally. These allegations were disputed by Mr Kenny, who in turn alleged that the applicant acted in a flirtatious manner toward him and that he had to reject her advances over a period of several months.
[8] It is apparent from the evidence that there is a level of animosity between the applicant and Mr Kenny. The evidence of each in relation to their personal dealings with the other was self serving and I do not regard it as reliable. To the extent that it is relevant to the matters to be determined, I find that comments of a sexual or flirtatious nature that passed between them were reciprocated and there is no evidence that such comments were unwelcome.
[9] I will return to the workplace culture generally, later in the decision.
The Evidence
[10] Despite the personal animosity between the main protagonists, there is only limited factual dispute in relation to the key events that are relevant to the matters that fall for determination.
[11] One area of dispute is whether the applicant was given written advice of her appointment to the full time position on a probationary period, and it is convenient to deal with this issue now. The respondent sought to have a letter dated 12 December 2010, marked MFI R6 admitted into evidence. Mr Kenny stated that the letter was provided to the applicant at around the time of her appointment to full time hours as a probationary employee. Ms Harvey objected to the letter being admitted on the basis that Mr Kenny did not refer to this letter in his evidence and the applicant denied receiving it. I indicated to the parties that I would check the transcript before ruling on this point.
[12] Having now reviewed the transcript, I note that Mr Kenny gave evidence, in answer to a question from the Tribunal, that MFI R6 was given to the applicant. 3 Ms Harvey chose not to cross-examine him on this evidence. I conclude that the applicant did receive the letter of 12 December 2010 and it will be taken into account. I don’t regard the applicant’s evidence as intended to mislead the Tribunal - she freely acknowledged on more than one occasion that she was placed on probation when she was given the full time hours of work - and I consider that she most likely forgot that she had received it.
[13] The applicant’s evidence was at times difficult to follow. The personal relationships among staff, and which she alleged also involved Mr Kenny, seemed uppermost in her mind when answering questions relating to her employment and her evidence on the facts of key events suffered as a result. I nonetheless found her to be a truthful witness and her evidence is accepted unless otherwise stated.
[14] In considering the applicant’s version of the events that transpired on 11 February, I am mindful that the other employees involved in the incidents have not been called by the respondent and have not had an opportunity to present their account of what happened. For this reason the employees are referred to only by their initials. Mr Kenny submitted that the specifics of the incidents on 11 February were irrelevant to the issues to be determined and I understand it was on this basis that no evidence was called.
[15] The applicant called four witnesses. John Wilkinson and Beth Zoebel were previously employed with the respondent as Food and Beverage Attendants. Their evidence went to the management style of Mr Kenny and their experience of working at the RSL. While there was little that was controversial in their evidence, for the most part the evidence has little if any probative value in relation to the issues that fall for determination.
[16] Geoffrey Chambers was the Executive Officer of the RSL for 17 years up to 17 August 2010. He had initially employed the applicant and gave evidence about her performance and conduct. His evidence was not challenged and is accepted.
[17] Wayne Manser was the final witness for the applicant. He is the Welfare and Pensions Officer at the RSL and also a life member. He regularly attends the RSL and came to know the applicant. His evidence went to his experience of the applicant as an employee and again, this evidence was not challenged.
[18] Mr Kenny gave evidence for the respondent. In most respects he was a credible witness and unless stated otherwise, his evidence has been accepted.
[19] Bruce Mullen, the respondent’s Finance Officer, also gave evidence for the respondent. Mr Mullen was present with Mr Kenny and the applicant at the meeting on 14 February 2011. He gave evidence as to what transpired at this meeting and also discussed previous incidents involving the applicant. Any areas where his evidence is not accepted are dealt with in the narrative that follows, but I consider his evidence was given honestly and is generally accepted.
Background
[20] The applicant commenced employment as a casual Food and Beverage Attendant with the respondent in March 2009. Initially she was given 12 hours per week but this soon increased to about 20 hours per week and by November 2009 she was often working in excess of 38 hours per week. In late November/early December 2010 she was offered a ‘promotion’ to a permanent full time position, subject to the successful completion of a three month probationary period that concluded on 28 February 2011. The applicant stated that her rate of pay dropped significantly when she became a full time employee, partly through the loss of the casual loading and partly because her roster changed and she no longer worked a full shift on Sundays. It was the evidence of both the applicant and Mr Kenny that the conversion of a number of casual employees to permanent at around this time was undertaken to reduce the respondent’s wages costs. 4
[21] The applicant’s duties included working in the Bistro and in the Members’ Bar. She also performed some supervisory duties and hosting work 5 after she was appointed to the full time position. Her full time rostered shifts were Monday, Tuesday, Wednesday and Friday and included more than one shift on some days.
[22] The substance of the letter of appointment to the full time position 6 is in the following terms:
“This letter is formal notification of your recent promotion from casual to full time. This promotion will initially be for a period of 3 months on a trial basis. At the completion of the 3 month trial period your position may possibly become permanent.
I want to stress that your performance will be monitored through this period and this promotion will not become permanent until the end of the 3 month period.
The period will commence from the 1st December and end on the 28 (sic) February.
Sincerely,
Tim Kenny
General Manager
Mt Gambier RSL
Community Club” (original emphasis)
[23] The respondent acknowledged that the applicant has very good hospitality skills and that she developed and maintained good relationships with the patrons of the RSL. The respondent’s complaint is that the applicant clashed with different staff members and behaved inappropriately towards them. The applicant received a first written warning on 12 January 2011 concerning a lack of respect towards the Bistro Supervisor after the applicant was allocated different duties to perform. The letter reminded the applicant that she was in a probationary period and that if she failed to correct her behavior the probationary period could end and that failure to comply with the conditions of the warning may lead to “… more serious corrective action up to and including discharge.” She was directed not to speak aggressively to staff and to work better with them, and to follow all directions of her Supervisor. 7
[24] Mr Kenny and Mr Mullen referred to two incidents between the applicant and other staff members, and under cross-examination the applicant accepted that she was spoken to on two occasions about clashes with other staff. 8 She was not re-examined on the topic. I understand Mr Kenny’s evidence to be that the first incident came to his attention when the receptionist attended his office in tears. The receptionist had recently been given shifts as the Host, which had previously been allocated to the applicant. Mr Kenny stated that the applicant had upset the receptionist and suggested in his evidence that the applicant was jealous of the receptionist’s new responsibilities.9
[25] It is apparent that the other incident was the subject matter of the first written warning as referred to above.
[26] A second written warning dated 12 February 2011 and relating to the incident on 11 February was, according to Mr Kenny, presented to the applicant at the meeting on Monday 14 February 2011. He said that the applicant did not sign the warning and did not take it with her when she left the meeting. The applicant stated that the warning was not given to her at the meeting, but she saw it on Mr Kenny’s desk at the time. I tend to the view that this written warning was intended to be presented to the applicant but the meeting took an unexpected course and as a result it was referred to but ultimately not given to the applicant.
The Incident on 11 February 2011
[27] The applicant was rostered for two shifts as Bistro Supervisor on Friday 11 February, commencing at 12 noon and then 6.00 pm. A co-worker, SJ, was one of the waiting staff rostered for work on this day. She was also a personal friend of the applicant’s, and the two shared a house until approximately a week before this day.
[28] A summary of the applicant’s account of the events of this day is as follows. She stated that SJ was upset from the time the applicant attended work. SJ considered that another staff member was not working productively and complained to the applicant.
[29] According to the applicant, SJ approached her again toward the end of the lunchtime service. She told the applicant that she had ended up in an argument with Mr Kenny and it was the applicant’s fault for not properly directing the other staff member. SJ was speaking loudly and then referred to a visit by Mr Kenny to the applicant’s house in the previous week. According to the applicant SJ was upset and screamed “He’s not your boyfriend.” Patrons were present at the time.
[30] SJ then stormed into the toilets and the applicant followed after her. The applicant explained her actions by reference to SJ’s inappropriate behavior and the applicant’s responsibilities as her Supervisor, and because she regarded SJ as a friend. Further words were exchanged between them in the toilets, and the applicant stated that SJ was speaking in a loud and emotional manner about matters relating to Mr Kenny. The applicant stated that SJ called her “a slut”. SJ then left the toilets followed shortly after by the applicant. It was obvious to the applicant that patrons had heard the exchange in the toilets, as had the Duty Manager, Carol Turner. At approximately 2.00pm, before her shift ended, SJ walked away from the Bistro area toward the Gaming area. A couple of minutes later the applicant went to the Gaming area where SJ was being comforted by Ms Turner. Ms Turner told SJ to go home.
[31] The applicant subsequently finished her shift and went home. When she returned for the evening shift she discovered that she had been swapped from Supervisor to waiting staff and SJ had been rostered to work in the Gaming area, some distance from the Bistro. About two hours into the evening shift the applicant said she that was approached by SJ as she was cleaning tables in the Bistro area. The applicant stated that SJ called her “a psycho” and said that she, SJ, was not going to pay the applicant the money she owed her from the period when they had shared a house. SJ moved away from the area and the applicant then approached her. The applicant told SJ that she had something to say to her and SJ said “well come here” and moved toward the Cashier’s office. The applicant followed.
[32] SJ went into the Cashier’s office and the applicant was standing in the doorway. The door to the Cahier’s office was heavy and the applicant had her foot in the door to keep it open. She stated that she asked SJ “What the hell is wrong with you, I’ve done nothing but help you out”. At that point the applicant says her arms were grabbed from behind by the Duty Manager for the evening shift, TH, who pulled her backwards. The applicant stated that both her legs got bruised from the door as she started to fall sideways when pulled by TH.
[33] I interpose that the applicant handed up two photographs taken on her mobile phone which each show a bruise on a part of a leg. 10 The applicant stated that the photographs were of her left and right leg, taken after the incident in the Cashier’s room. The photographs themselves are not marked with a date or time and there is nothing to indicate that the legs belong to the applicant. I do not regard these photographs as evidence that the applicant suffered bruising to her legs as a result of being pulled by TH.
[34] According to the applicant, TH said “Fuck off back down there, do your job, you psycho”. The applicant said “This is bullshit” and stated that this was the first time that she had raised her voice in either shift on that day. She went back to the Bistro area and re-commenced cleaning the tables but said she was too upset to continue. She spoke to another staff member and told her she was going home. As she was leaving the applicant made eye contact with the Bistro Supervisor, who nodded back to her and then the applicant went home. It was about 8.30pm at this stage. The applicant acknowledged that the practice adopted at the end of a shift was that the Bistro Supervisor would tell the waiting staff when they could leave and the staff would then “sign off”.
[35] When she got home that night she rang Mr Kenny on three separate occasions but he didn’t answer. The following day she sent Mr Kenny a text message. 11 I have chosen not to set out the contents of the message. Suffice to say that it is generally consistent with the applicant’s evidence. It also includes references to staff being under the influence of drugs at work, with Mr Kenny’s knowledge, Mr Kenny flirting and being personally involved with identified staff members, and petty jealousies and bitchiness among staff. The start of the message also makes it clear that the applicant knew Mr Kenny would be concerned about the events of the previous day. It commences, “Couple of facts u should keep in mind before u finish deciding about yesterdays action”.
The meeting on 14 February 2011
[36] On 14 February the applicant attended the workplace for her 9.00am shift. Only one person was required for this shift but the applicant noticed another worker was present when she arrived. The Duty Manager requested that the applicant attend Mr Kenny’s office. She did so and after she arrived there Mr Kenny got Mr Mullen. According to the applicant Mr Kenny said that there two incidents to discuss and that he wanted only “yes” and “no” answers. This is disputed by Mr Kenny.
[37] Mr Kenny asked if the applicant left work without signing off. The applicant says that she answered “Yes, but …” and before she could explain further she was cut off. Mr Kenny then asked if she had raised her voice in the bar area. The applicant said she felt uncomfortable being confined to “Yes/No” answers and said that she wanted a committee member present. The applicant gave evidence that she also wanted SJ and TH present although it is not clear if this was actually stated to Mr Kenny.
[38] She said that Mr Kenny responded by saying that if she spoke to any committee members about the incident she would not get any further shifts.
[39] According to the applicant, Mr Kenny said that he had intended to contact her on the previous Saturday but didn’t want to deny her the privilege of getting dressed for work on her last day and hearing the news face to face. She was told to take a weeks leave and look for another job and if she was unsuccessful to contact the respondent on Sunday to find out about her shifts. The applicant stated that Mr Kenny then said that staff couldn’t just walk out on a shift and while the RSL initially thought that she was “what they were looking for” they no longer held this view.
[40] The applicant stated that Mr Mullen asked her what the “sex and flirting” was all about, apparently in reference to the events on Friday. The applicant said that this was nothing to do with her and that it was a discussion between Mr Kenny and SJ. She stated that at this point she was cut off by Mr Kenny who said he wouldn’t discuss it because it was not work related.
[41] The applicant stated that she knew she had been fired and left the meeting.
[42] In his cross-examination of the applicant, Mr Kenny focused on her non-attendance for further shifts offered by the respondent and her failure to contact the respondent on the following Sunday. He did not specifically question the applicant about her account of the meeting on 14 February.
[43] In his evidence, Mr Kenny stated that he had been informed by TH that the applicant had instigated the argument with SJ. He said he spoke with SJ and told her that her behaviour was inappropriate, although no disciplinary action was taken against her. Mr Kenny said he viewed the camera surveillance of Friday 11 February and was aware that the applicant was physically grabbed by TH, but said that the applicant was not “dragged” away by TH. He said he considered this a serious matter but no disciplinary action was taken against TH.
[44] Mr Kenny stated that, at the meeting on 14 February, he gave the applicant an opportunity to speak about what had happened but also said that he did not consider the details of the incident to be a relevant matter. 12 He disputed that the applicant asked for a committee member to be present. Rather, it was Mr Kenny’s evidence that the applicant wanted to speak to the whole committee and that this was refused on the basis that it was his responsibility to handle employment matters.
[45] He stated that he told the applicant to take a weeks’ annual leave and that there would be plenty of shifts available for her after that. Following the meeting Mr Kenny said he spoke to Ms Turner and told her to roster the applicant for a couple of shifts in the week following her leave, and that more shifts could be allocated to her after the applicant contacted them on the Sunday.
[46] The applicant was given no advance warning of the meeting on 14 February. She was not given the opportunity to put her version of the events that had taken place on 11 February, although Mr Kenny had the benefit of her text message sent on 12 February. As Mr Kenny noted in his evidence, he didn’t want to get embroiled in the details of the argument between the applicant and SJ, 13 The second written warning, whether presented to the applicant or not, had been prepared in advance of the meeting and the decision to remove her from the full time position was also determined in advance of the meeting. I find that these outcomes were influenced by Mr Kenny’s discussions with SJ, Ms Turner and TH.
[47] It is agreed that there was phone contact between Mr Kenny and the applicant on two occasions in the week commencing 21 February, after the applicant’s annual leave, initiated by Mr Kenny both times. The evidence that each gave in relation to these discussions is consistent to the extent that Mr Kenny wanted the applicant to fulfill her rostered shifts and that in the first phone call he queried why the applicant had not rung on Sunday 20 February to get extra shifts. It is also agreed that the applicant’s attitude was that she wanted her full time position back and that Mr Kenny invited the applicant to attend the RSL to discuss matters with himself and/or Mr Mullen, an opportunity not taken up by the applicant. The applicant stated that unless Mr Kenny reinstated her to a full time position, she regarded herself as dismissed and there was nothing to discuss.
[48] The applicant stated that a number of personal matters were also discussed in these two phone conversations which lasted for 13 minutes and 17 minutes each.
Consideration - was the applicant dismissed?
[49] I find that Mr Kenny did not intend that the applicant cease work for the RSL but that he wished her to continue as a casual employee on a reduced number of shifts. Having regard to Mr Kenny’s evidence that the reason he converted some casual positions with significant hours to permanent positions was to reduce costs, it is not credible that he intended, as part of the disciplinary action against the applicant, to increase her wages to the previous level to the detriment of the respondent’s financial position. The applicant was only rostered for two shifts totaling 7 hours in the week ending 23 February 2011 and the same hours in the week ending 2 March 2011, in accordance with rosters prepared on 14 February 2011. 14 She was also required to contact the employer to find out what additional shifts were available for her to work. This represented a significant change in the employment arrangement. Had Mr Kenny intended to revert the applicant to her previous “casual” position, as he stated in evidence, he would have presented her with a roster containing hours and shifts equivalent to those she worked before she became a permanent employee.
[50] The evidence indicates that the applicant worked between 30 and over 38 hours per week for approximately 12 months prior to her ‘promotion’ to a full time position. She had regular rostered shifts and there is no evidence that the employment relationship was informal or that the applicant was other than a permanent part of the base line staffing requirement of the Community Club with regular and systematic hours of work. During this period the applicant was paid as a casual, but this is not determinative of the employment relationship. It is the facts and circumstances of the working arrangements between the parties that establishes the true nature of the employment relationship. 15
[51] The applicant’s ‘promotion’ to a full time position towards the end of 2010 had little practical effect on her working hours other than to eliminate a Sunday shift and to reduce the wages she received, although she did become entitled to other benefits in the form of leave and redundancy payments etc. In reality, the ‘promotion’ to full time did not change the nature of the employment relationship between the parties, but was an administrative arrangement to reduce the respondent’s wages costs. The probationary period was therefore illusory. I find that the applicant was not a casual employee at common law for many months before her ‘promotion’ to a full time position and that she was in fact a permanent employee from at least November 2009 up to 14 February 2011.
[52] In Searle v Moly Mines Limited 16 a Full Bench of the Australian Industrial Relations Commission (AIRC) considered the concept of termination of employment at the initiative of the employer and stated as follows:
“[22] Before turning to the facts of this case there is another issue which arose in the course of the submissions with which we should deal. That matter concerns the relevance of the principles governing the termination of a contract of employment. It is clear that the statutory test relates to termination of the employment relationship, not termination of the contract of employment. The difference is well illustrated by the following passage from the joint judgment of Brennan CJ and Dawson and Toohey JJ in Byrne and Frew v Australian Airlines Ltd:
“It does not appear to have been doubted in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract. That was accepted by both the majority and minority in Automatic Fire Sprinklers Pty Ltd v Watson [(1946) 72 CLR 435 at 471]. As Latham CJ said (at 454):
“An employer terminates the employment of a servant when he dismisses him, though, as I say hereafter, such a dismissal does not put an end to the contract between the parties. An argument that a dismissal because wrongful was a nullity was raised and rejected in both Williamson’s Case [Williamson v The Commonwealth, (1907) 5 CLR 174 at 185] and Lucy’s Case [Lucy v The Commonwealth, (1923) 33 CLR 229 at 237, 238, 249, 252, 253].”
And as Dixon J said [Automatic Fire Sprinklers Pty Lt v Watson at 545]:
“there is nothing in the general law preventing the wrongful dismissal of a servant operating to discharge him from service, notwithstanding that he declines to accept the dismissal as absolving him from further performance but keeps the contract open and remains ready and willing to serve.”
[23] In the case of wrongful dismissal, as the passage shows, the employment is terminated by the employer even though the contract continues until the employee accepts the repudiation, thereby bringing the contract to an end. In applying the statutory test it is the termination of the employment relationship which is important.”
[53] In this case the respondent terminated the employment relationship on 14 February 2011. The reduction in hours of work constituted a repudiation of the employment relationship by the respondent. 17 The applicant accepted the repudiation when she refused to work any shifts unless her full time position was reinstated. She was clear that she did not accept the new employment terms offered by the respondent and it was this action that brought the contract of employment to an end. In accordance with the passage in Searle, above, I conclude that the respondent terminated the full time employment of the applicant and she was therefore dismissed at the initiative of the employer. Having reached this view I now turn to consider whether the dismissal was harsh, unjust or unreasonable.
Was the dismissal harsh, unjust or unreasonable?
[54] Section 387 of the Act sets out the criteria that the Tribunal must take into account in determining whether a dismissal was harsh, unjust or unreasonable. It is in the following terms:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
S.387(a): Was there a valid reason for dismissal?
[55] The reasons relied upon by the respondent for taking action to end the probationary period were two fold: that the applicant left work without authorisation from her Supervisor on the evening shift on 11 February 2011; and that she engaged in an altercation with a co-worker on her shifts on this day. Both these matters are agreed but the applicant argues that the respondent failed to have regard to the full range of circumstances relevant to the characterisation of her actions.
[56] In relation to the charge of leaving work without authorisation, the applicant contends that she was upset at having been yelled at by SJ and assaulted by TH. She argues that the seriousness of her actions are also diminished by the fact that she advised a co-worker that she was leaving and that the Supervisor had seen her leave. I accept that the applicant was upset at the events that had occurred at the conclusion of the evening shift, particularly the actions of the Duty Manager, and that this is a matter to be taken into account in the assessment of her actions in leaving work without authorisation.
[57] As to the altercation with SJ, on the applicant’s evidence SJ was upset over a personal matter for which she rightly or wrongly, held the applicant responsible. The applicant’s actions exacerbated the situation with SJ and/or caused the argument to continue. On the lunchtime shift the applicant followed SJ into the toilets which extended the altercation. The effect of her actions was to apparently increase SJ’s distress and culminated in a loud altercation which was overheard by the patrons in the Bar area.
[58] On the evening shift on 11 February, the applicant again took a deliberate decision to continue to engage with SJ after she was approached. She did not report the matter to the Duty Manager or simply ignore SJ, but instead decided to continue to engage with her by leaving her work area and following SJ to the Cashier’s office.
[59] I find that the respondent had a sound basis to discipline the applicant for her actions in relation to the events of 11 February. However, on the applicant’s evidence, she was provoked by SJ and assaulted by TH. The respondent apparently accepted the information from the other staff members that he spoke to that the applicant had instigated the argument with SJ. He did not dispute that TH had grabbed the applicant but there is no evidence that this was a matter he took into consideration.
[60] A valid reason is one which is sound, just or well founded. 18 In King v Freshmore (Vic) Pty Ltd,19 a Full Bench of the AIRC considered among other matters, the concept of “a valid reason” and the approach to be taken by the Tribunal in determining is there was a valid reason for termination connected to the conduct of the employee. The case was decided under the Workplace Relations Act 1996 (the WRA), but the passage below remains apposite.
“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.”
[61] My findings as to what transpired on 11 February are set out above. The only issue that appears to be in dispute is whether it was the applicant or SJ who initiated the altercations on each of the shifts on this day. As noted earlier the respondent did not lead any evidence in support of his contention that the applicant instigated the altercations and he did not cross-examine the applicant in relation to this matter. The only information Mr Kenny placed before the Tribunal was hearsay evidence of what had been told to him by the other employees he spoke to. On this basis the applicant’s evidence that she did not instigate either of the altercations is accepted. This is a mater relevant to the characterisation of the applicant’s actions.
[62] It has been held that a reason for termination may not be valid where the alleged conduct occurred but it did not justify termination. 20 In this matter there is a range of mitigating circumstances that should have been taken into account by the respondent. The fact that the applicant did not instigate the altercations; that she was provoked by the actions of SJ; that she was physically grabbed by the Duty Manager; and that she left work before the conclusion of her shift because she was upset; all diminish the seriousness of her conduct. When these matters are taken into account, the dismissal was disproportionate to the actions of the applicant. I conclude that there was no valid reason for dismissal.
S.387(b): Was the employee notified of the reason for dismissal?
S.387(c): Was the employee given an opportunity to respond to the allegations?
[63] The notification of the reasons for dismissal must be provided in advance of the decision to terminate in order to afford procedural fairness to the employee. 21 I consider that the reasons for removing the applicant from her full time position would have been apparent to the applicant in so far as those reasons concerned leaving the workplace without signing off and being involved in an altercation with a co-worker. However the fact that the respondent held the applicant responsible for the altercation with SJ was not advised to her.
[64] The respondent prepared the second written warning in advance of the meeting on 14 February and this fact together with the manner in which the meeting was conducted lead to the conclusion that the outcome of the meeting was predetermined. The applicant was not given a reasonable opportunity to respond to the allegations against her. Mr Kenny had the benefit of the views of SJ, TH and Ms Turner and had viewed the camera surveillance footage of the incident, but none of this information was put to the applicant. I find that Mr Kenny had made up his mind, on the basis of his discussions with others, that the applicant had initiated the argument; that this was a repeat of previous conduct that had been raised with her; and that she did not have a reasonable excuse for leaving the workplace without signing off. While the applicant had put certain information to Mr Kenny in the text message she sent on 12 February, this did not justify the respondent refusing to hear further from her, especially when she was unaware of the information he had obtained.
S.387(d): Did the employer unreasonably refuse to allow a support person to be present?
[65] There is contradictory evidence as to whether the applicant requested that a committee person be present at the meeting on 14 February or if she requested that she be allowed to address the committee. I have reached no firm view on this matter but I consider that the lack of advance warning of the meeting denied the applicant the opportunity to take advice in relation to how she should approach the meeting or to organise a representative to accompany her. The employer was not obliged to advise the applicant of her right to have representation, but its conduct effectively denied the applicant the opportunity to obtain representation and/or advice and this was a denial of procedural fairness.
S.387(e): Was the applicant warned about her conduct?
[66] It is agreed that the applicant had been warned about her conduct, once in writing and at least once verbally prior to 14 February 2011. The applicant would have understood from the terms of the written warning that the manner of her dealings with other staff was in issue and needed to improve. Her actions in exacerbating and extending the altercations that occurred on 11 February, although they were not initiated by her, indicates that she did not have proper regard to the matters that had formally been brought to her attention.
S.387(f) and (g): The size of the employer’s undertaking and access to specialist resources
[67] Sub-sections 387(f) and (g) of the Act require that the Tribunal consider the impact that the size of the employer’s undertaking and the level of expertise available to the employer may have on the procedures adopted in relation to the dismissal. In this case the respondent is not a small business employer as defined, but it not a large employer. It is unsophisticated in its approach to human resources issues and does not have any dedicated expertise in this area.
[68] In this case the procedural flaws are significant. The size of an employer’s undertaking and its general lack of HR sophistication cannot be relied upon to overcome serious defects in procedure which deny basic procedural fairness to the employee.
S.387(h): Other matters?
[69] The workplace culture at the Community Club was one where the line between the personal and the professional was blurred. There is sufficient evidence before the Tribunal to conclude that Mr Kenny did not keep the appropriate distance from staff. In doing so he set a poor example of professional conduct in the workplace and also became the subject of interpersonal conflict amongst his staff. Indeed his contact with the applicant outside of working hours appears to have been a main factor in the altercations on 11 February. Mr Kenny should bear some responsibility for the workplace culture that developed and this is a further matter to be considered in relation to the proportionality of the dismissal.
Was the dismissal harsh, unjust or unreasonable?
[70] The words “harsh, unjust or unreasonable” are disjunctive. They were discussed in the decision of the High Court in Byrne and Frew v Australian Airlines, where it was stated that:
“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.” 22
[71] The employer was required to conduct a full investigation in relation to the incidents that occurred on 11 February 2011, including the alleged assault on the applicant by the Duty Manager. 23 There were many witnesses to these events but the employer only spoke to a few employees. Mr Kenny denied the applicant the opportunity to put forward her version of events and instead proceeded upon the information he received from those few employees, two of whom may have had good reason to downplay the level of their own culpability. While the employer had grounds to censure the applicant for her conduct in relation to the events of 11 February, dismissal was a disproportionate response when relevant mitigating circumstances are taken into account. For these reasons I conclude that the dismissal was harsh and unjust.
The remedy
[72] The applicant identified reinstatement as the remedy she was seeking in her s.394 application.
[73] It was only in final submissions that Ms Harvey announced that the applicant was no longer seeking re-instatement and was instead pursuing compensation. This was put in response to questions from the Tribunal, prompted by the applicant’s repeated references to her loss of trust and confidence in Mr Kenny throughout her evidence. No evidence was elicited as to the applicant’s earnings since dismissal or other information relevant to the issue of compensation. Ms Harvey sought to recall the applicant to give evidence when this matter was raised by the Tribunal, but I declined this request at the time.
[74] Section 392 of the Act sets out the factors to be taken into account by the Tribunal in determining the quantum of compensation in an application for an unfair dismissal remedy. Section 392 provides as follows:
“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), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. Disregarded
(4) The amount ordered by FWA 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.
Compensation cap
(5) The amount ordered by FWA 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.
(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.”
[75] The high income threshold referred to in s.392(5)(b) of the Act, above, is currently set at $118,100. Section 393 of the Act also grants discretion to Fair Work Australia to permit the employer to provide payment of compensation by instalments, although the Tribunal would need to be persuaded that there is good reason for doing so.
[76] The parties will be shortly advised of a further directions conference to consider how the issue of remedy will proceed.
DEPUTY PRESIDENT
Appearances:
Ms S Harvey of South East Community Legal Service on behalf of the Applicant
Mr T Kenny on behalf of the Respondent
Hearing details:
19/7/2011
Mount Gambier Courthouse
1 [2011] FWA 4061
2 Small business employer is defined in s.23(1) of the Act
3 PN 1032
4 PN 158 and PN980, respectively
5 This work involves welcoming people attending the RSL for meals and showing them to their table as well as hosting certain functions.
6 Previously marked MFI R6 but now Ex R6.
7 Ex R1
8 PN676-681
9 Mr Mullen also spoke with the receptionist after the incident but could not recall what the incident was about.
10 MFI A5
11 The transcription of this text message was admitted as Ex A7
12 PN 980
13 PN 1029
14 Ex A2 and A3. An amended roster for the week ending 2 March 2011 was also admitted (A4), which showed that the applicant’s hours in this week were reduced from 7 to 3.5 hours.
15 Cetin v Ripon Pty Ltd t/as Parkview Hotel PR938639 at paragraph 57.
16 [2008] AIRCFB 1088
17 Blair v Chubb Security Pty Ltd, PR936537 at paragraph 40.
18 Selvachandran v Peteron Plastics, (1995) 62 IR 371 at p373
19 Print S4213
20 Edwards v Justice Guidice [1999] FCA 1836 at paragraph 7
21 Crozier v Palazzo Corporation Pty Ltd, S5897 at paragraph 73
22 (1995) 185 CLR 410 at 465, per McHugh and Gummow JJ at paragraph 128
23 Bi-Lo v Hooper (1992) 59 SAIR 342 at pp352-353
Printed by authority of the Commonwealth Government Printer
<Price code C, PR514090>
7
0