Ms Catherine Patmore v Hydraulic & Pneumatic Pty Ltd T/A Hydraulic & Pneumatic Pty Ltd

[2014] FWC 2729

[2014] FWC 2729

FAIR WORK COMMISSION

DECISION

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

Ms Catherine Patmore
v
Hydraulic & Pneumatic Pty Ltd T/A Hydraulic & Pneumatic Pty Ltd
(U2013/16214)

COMMISSIONER ROE MELBOURNE, 28 APRIL 2014

Termination of employment.

[1] The matter arises from an application filed on 25 November 2013 under Section 394 of the Fair Work Act 2009 (Cth) (the Act) by Ms Catherine Patmore (the Applicant) for relief in respect to the termination of her employment from Hydraulic & Pneumatic Pty Ltd (the Respondent).

[2] The Applicant was employed by the Respondent from March 2005 until the termination of her employment at the initiative of the employer on 17 November 2013. Mr Montgomery, the Managing Director of the Respondent, met with the Applicant on 11 November 2013 and raised a number of concerns. On 15 November 2013 Mr Montgomery advised the Applicant that he was considering the termination of the Applicant's employment. On 17 November 2013 Mr Montgomery telephoned the Applicant and confirmed that the Applicant's employment was terminated. The Applicant was paid her entitlements including four weeks pay in lieu of notice. It is not in contention that the Respondent is a national system employer, the Applicant was dismissed at the initiative of the employer for reasons related to alleged misconduct, the Respondent is not a small business employer and the termination was not for reasons of redundancy.

[3] The Applicant was represented by her union, the ASU, and Mr Montgomery for the Respondent was assisted during the proceedings by a legal adviser, Mr Smith.

[4] I heard evidence from the Applicant, from the Applicant's husband, Mr Gregory Jans, and from Mr Paul Fleming who is the owner of Flemings Landscapes and Plant Hire Pty Ltd. Both the Respondent and Mr Fleming's business provide services to Australian Paper Maryvale and both businesses have facilities on the Australia Paper Maryvale site.

[5] Evidence for the Respondent was given by Mr Peter Montgomery. Towards the end of proceedings Mr Montgomery sought leave to introduce evidence from Mr R Lewis, another manager for the Respondent. Directions had been issued and complied with by both parties to exchange an outline of submission and witness statements in advance of the proceedings. No notice was given in this material that an additional witness would be called. At the beginning of the proceedings I identified the relevant material before me in the case and this was confirmed by the parties. Mr Montgomery sought leave for Mr Lewis to give evidence concerning alleged warnings given to the Applicant about playing computer games and concerning conducting of Mr Fleming's business. As there was no contest that Mr Lewis had in July 2013 advised the Applicant not to conduct Mr Fleming's business whilst she was at the Respondent's work and relevant submissions and evidence in respect to that matter had already been provided I refused permission for further evidence in respect to that matter. I allowed Mr Lewis to give evidence in respect to the alleged warning in respect to playing computer games. I then allowed further evidence in reply from the Applicant in respect to that matter.

[6] There was no issue concerning the Applicant's performance. Mr Montgomery told the Applicant and Mr Jans at the meeting on 15 November 2013 that the Applicant was very capable of doing her job and that the termination of employment was not related to her performance. 1

[7] No letter of termination was ever provided to the Applicant. No written warnings or other written advice concerning the conduct of the Applicant was ever provided to the Applicant. Mr Montgomery says that he had prepared a letter to present to the Applicant at the meeting on 15 November 2013. That letter proposed that the Applicant resign her employment because Mr Montgomery had lost confidence in the Applicant and cited issues “surrounding my concerns with Flemings, Dennis and other internal issues involving yourself” as the reasons for requesting a resignation. 2 The nature of these issues was not further specified in the document. Mr Montgomery accepts that he did not provide the Applicant with the letter. Having considered the evidence given by the Applicant and Mr Montgomery about this matter I am not satisfied that there was anything which prevented Mr Montgomery from providing the Applicant with a copy of the letter during the meeting on 15 November 2013. I consider that it would be unsafe to infer that the content of a letter which was not provided to the Applicant was in fact the information which was conveyed to the Applicant by Mr Montgomery during the meeting. Mr Montgomery says that he read out the contents of the letter but the Applicant denies this occurred. I did not find the evidence of Mr Montgomery concerning this matter and the reasons why he did not provide the letter to the Applicant to be convincing.

[8] Relations between Mr Montgomery and the manager to whom the Applicant reported, Mr Dennis Curley, deteriorated during the early part of 2013 and Mr Curley left the business in August 2013.

[9] Having considered all of the evidence I am satisfied that apart from minor concerns over the Applicant playing computer games in 2012 there were no concerns about the Applicant's conduct or performance prior to 2013.

[10] A difficulty in this case is that Mr Montgomery provided extensive evidence about the concerns he had about the Applicant's conduct however Mr Montgomery did not provide clear evidence about exactly what was said to the Applicant in response to the alleged conduct when it actually occurred at various times during 2013 and also did not provide clear evidence about exactly what was raised at the meetings on 11 November 2013 and 15 November 2013. The evidence provided by Mr Montgomery identified that he was concerned about matters which occurred earlier in 2013 but the detail of these matters was not necessarily raised at these November meetings. This difficulty in identifying what was said to the Applicant and what might reasonably have been understood by the Applicant is compounded by the absence of any warning letters or advice and by the absence of any termination letter.

[11] The Applicant says that at the meeting on 11 November 2013 Mr Montgomery raised the following concerns about her conduct:

● The Applicant conducting book-keeping work for Paul Fleming's business whilst at the premises of the Respondent.
● The Applicant allegedly providing information to Paul Fleming about an arrangement between the Respondent and Australian Paper for the Respondent to keep a service truck on site at Australian Paper in the event of industrial disruption. The Respondent was charging Australian Paper for this service. Paul Fleming then sought to charge the Respondent an amount for him keeping the truck securely in his compound on the site.
● The Applicant socialising with and providing information to the former manager Mr Curley.

[12] In response to these matters the Applicant said that:

● She had been conducting book-keeping work for Paul Fleming’s business without being paid for these services during lunch times whilst at the Respondent’s premises between May and July 2013. Mr Lewis instructed her not to continue this practice in July 2013.
● She had not been the source of the information about the service truck arrangement with Paul Fleming and told Paul Fleming that she would not invoice the Respondent in respect to this matter.
● She was not socialising with and or providing information to Mr Curley.

[13] Mr Montgomery accepts that the specific focus of matters raised at the meeting of 11 November 2013 was the source of information to Paul Fleming about the arrangement with Australian Paper concerning the keeping of the service vehicle on site and the conducting of book-keeping work for Paul Fleming's business whilst at the premises of the Respondent. It is not in contention that the Applicant told Mr Montgomery that Mr Fleming had told her that the Respondent's managers, Mr Barry and Mr Lewis, were the source of information to Mr Fleming about the service vehicle arrangement. She also denied any knowledge of the invoice which was issued by Mr Fleming to the Respondent in relation to the service vehicle. The Applicant said that Mr Fleming had told her that he wanted to bill the Respondent for securing the vehicle but she had told Mr Fleming not to do it and that she would not assist him with doing it. Mr Montgomery agreed to further consider and investigate the matters raised by the Applicant particularly the version of events concerning the service vehicle arrangement given by the Applicant. No warning was issued at the meeting of 11 November 2013 and there was no indication given that the future of the employment of the Applicant was under review. Mr Montgomery asked Mr Lewis to investigate the matters raised by the Applicant and Mr Fleming in respect to the service vehicle arrangement.

[14] At the meeting on 15 November 2013 Mr Montgomery advised the Applicant that he had considered the responses she had given at the meeting of 11 November 2013 and had decided that continuation of her employment was no longer tenable. In response the Applicant demanded that the conversation continue in a more private place and that her husband, Mr Jans, be present. The Applicant rang Mr Jans, who works at Australian Paper, and Mr Jans attended after a short delay.

[15] The Applicant rang Mr Fleming on a speaker phone and Mr Fleming confirmed to Mr Montgomery that the source of information about the service vehicle arrangement between Australian Paper and the Respondent had been Mr Lewis and Mr Barry, not the Applicant. Mr Fleming also confirmed that the managers had provided him with information about the financial details of the arrangement.

[16] The focus of the meeting on 15 November 2013 was the issue of the service vehicle arrangement. However, Mr Montgomery says that other issues regarding the Applicant continuing to conduct business for Mr Fleming whilst at the premises of the Respondent were also raised. The Applicant also made allegations concerning bullying behaviour by Mr Lewis. Mr Montgomery says that he agreed to consider the matters raised and respond with his decision. He then telephoned the Applicant on 17 November 2013 confirming that her employment was terminated.

Conclusions regarding the allegations concerning the service vehicle.

[17] I found Mr Fleming to be a very direct witness. Some of his evidence was unfavourable to himself but was given without hesitation or qualification. His evidence was consistent and not shaken by cross examination. His evidence was largely accepted by Mr Montgomery. On the other hand Mr Montgomery had no direct knowledge of the matters in contest. The Respondent brought no direct evidence to contradict the evidence of the Applicant and Mr Fleming in respect to the service vehicle matter when they were in a position to do so. The Applicant's evidence about this matter was also consistent. I am satisfied that:

● The Applicant was not the source of information about the service vehicle arrangement. When Mr Fleming first raised the prospect of billing the Respondent in respect to the service vehicle the Applicant told him not to do it and refused to assist him in doing so.
● The Applicant told Mr Lewis directly after this about Mr Fleming's plan and that she had refused to participate in it.
● At least a month later Mr Fleming proceeded to provide an invoice to the Respondent. Mr Fleming produced the invoice himself. The Applicant had no part in producing the invoice and had no knowledge that the invoice had been produced or presented to the Respondent until after this had been done.
● The Applicant did not withhold information relevant to these matters from the Respondent.

[18] I do not accept the submission of Mr Montgomery that the Applicant was inconsistent in her responses to him about this matter. The perception of inconsistency arose because some of the Applicant's responses related to her knowledge of the initial proposal by Mr Fleming to bill the Respondent and some related to her knowledge of the actual invoice which was presented by Mr Fleming to the Respondent at a later time.

[19] I am satisfied that Mr Montgomery came to the conclusion that the Applicant had been the source of information about the service vehicle arrangement, had been a party to the arrangement whereby Mr Fleming invoiced the Respondent and had produced the invoice or had knowledge of the invoice and had failed to advise the Respondent. I am satisfied that this was the matter which led to Mr Montgomery deciding to terminate the Applicant's employment. I accept that there were other matters which contributed to the decision but it was the invoice in respect to the service vehicle which was the catalyst and the major factor.

[20] I am satisfied that Mr Montgomery did not properly investigate the matter and that it was inappropriate to delegate the investigation of the matter to Mr Lewis when the Applicant had clearly advised Mr Montgomery that it was in fact Mr Lewis who had been the source of the information about the service vehicle arrangement to Mr Fleming.

Conclusions concerning the Applicant's conduct of business for Mr Fleming

[21] The Applicant did do bookkeeping work for Mr Fleming. The evidence that the Applicant did not receive any payment for these services is not contested. The Applicant did the bookkeeping work during her lunch breaks from May 2013 until July 2013. From time to time Mr Fleming would bring documents relevant to this work to her whilst she was in the office of the Respondent. Given that Mr Fleming was a customer of the Respondent he had legitimate business reasons to be at the offices of the Respondent. Mr Lewis told the Applicant that he did not approve of this. The Applicant gave evidence that initially she thought that all Mr Lewis was objecting to was the practice of Mr Fleming coming into the office to give her documents associated with Mr Fleming's accounts. The Applicant said that it was only made clear at a later time that Mr Lewis did not approve of her doing any work associated with Mr Fleming's business whilst on the Respondent's premises. Mr Montgomery says that it was made very clear to the Applicant by Mr Lewis that she was not to do any work for Mr Fleming whilst on the Respondent's premises or using the Respondent's facilities.

[22] The Applicant was given no written instruction and she was given no warning. There is nothing in the evidence that suggests that the Applicant was told that her employment might be at risk if she did not follow the direction about doing work for Mr Fleming. The Applicant says that another employee of the Respondent, Mr Roe, also assisted Mr Fleming in completing his books and accounts whilst on the Respondent's premises and using the Respondent's facilities. No action has been taken against Mr Roe.

[23] Notwithstanding the lack of clarity around some aspects of this matter, I am satisfied that Mr Lewis did make it very clear to the Applicant that he did not approve of her conducting Mr Fleming's business whilst at the Respondent's facilities. I consider that even if it was not explicitly stated, it was reasonable for the Applicant to have understood after Mr Lewis had intervened in July 2013 that she should not conduct Mr Fleming's business whilst at the Respondent's premises and using the Respondent's facilities. The Applicant conceded in her statement that she had been "doing bookkeeping work for Paul Fleming's business without charge during my lunch break" and that Mr Lewis "had told me not to do it any more" in July 2013. 3

[24] The Applicant claims that she did cease doing the work. However, she conceded that there were two instances where she did do further work. One related to forwarding a request to transfer a telephone account for Mr Fleming in August 2013 4 and the other related to fuel invoices for Mr Fleming on 11 September 2013.5 The first of these matters involved the Applicant scanning a letter at 8.38am and forwarding it to a service provider at 8.48am. The Applicant normally commenced work at 8am. The second of these matters involved a request from the Applicant to an accountant at 12.12 pm and a response at 12.29pm.

[25] Mr Montgomery submits, and I agree, that the responses the Applicant gave to him in November 2013 and during the proceedings about the transfer of the telephone account were not very plausible. The Applicant denied seeing or reading the letter requesting the telephone account transfer but it is clear that she scanned the document and sent a covering email which explained that the letter was a signed letterhead for the transfer of the enclosed mobile phone account.

[26] The Respondent also provided evidence that the general ledger of Mr Fleming's accounts were emailed from the Applicant's work email account to an email account accessible to Mr Montgomery on 6 August 2013 at 8.44am. 6 The Applicant denies any knowledge of this. The forwarding of the ledger may have been an error but I do not consider it likely that someone other than the Applicant used her email address to forward the documents. I also accept the submission of Mr Montgomery that the Applicant was not straightforward in responding to his questions about this matter. Although I accept that Mr Montgomery asked about the "financials" and it is correct to distinguish the financial reports prepared by the accountants from the ledgers and the other materials which are used to create those reports I consider that the Applicant downplayed the extent of her involvement in these matters.

[27] The Respondent provided a number of other documents which they say show the Applicant's activity on behalf of Mr Fleming using the Respondent's facilities. These matters were not raised with the Applicant prior to the termination. These matters are:

● Acopy of the Applicant's computer screen on 26 August 2013 which the Respondent says shows that a number of invoices relating to Mr Fleming had been recently accessed. The Applicant says that she was not at work at the time shown as she was at the doctor due to her workcover injury. 7 The Applicant accepts that the invoices were on her work computer but denies she accessed them at that time.

An email from Mr Fleming's accountant to the Applicant at her work address on 20 September 2013 re Mr Fleming's tax returns. The Applicant denies that she has seen this email.

● A print out of the Applicant’s outlook mail account page from 23 September 2013 which shows that the Applicant sent messages concerning Mr Fleming's business on Sunday 22 September and received several messages related to Mr Fleming's business on Monday 23 September. The Applicant says that she was not at work those days.
● An email message dated 24 October 2013 to the Applicant's work email from Mr Fleming's accountant seeking assistance in contacting Mr Fleming. The Applicant claims that she did not deal with this email and was not at work that day.
● An email message dated 31 October 2013 to the Applicant's work email from Mr Fleming's accountant seeking some details from the Applicant to assist in finalising Mr Fleming's tax returns. The Applicant claims that she did not deal with this email at work.

[28] I am not satisfied that the first and third of these matters can reasonably be explained by someone else logging in to the Applicant’s computer. It is possible that the invoices were accessed by the Applicant some time earlier than 26 August 2013 but I am satisfied that the Applicant did access the invoices.

[29] I am satisfied that the Applicant did make efforts to limit the work that she did for Mr Fleming when at the Respondent's premises. However, I am satisfied that the evidence shows that despite the instructions given by Mr Lewis to not conduct Mr Fleming's business from the Respondent's facilities the Applicant:

● Retained records related to Mr Fleming's business on the work computer;
● Did not advise Mr Fleming or Mr Fleming's accountant not to use her work email address for matters relating to Mr Fleming's business; and
● On at least two occasions after July 2013 the Applicant did conduct Mr Fleming's business from the Respondent's facilities using the Respondent's equipment. On one occasion this was during normal working time for the Respondent.

[30] I consider it is likely that the Applicant did access documents relating to Mr Fleming’s business on a limited number of other occasions using the Respondent’s email and computer facilities.

Conclusions regarding the allegations in respect to computer games

[31] The Applicant was advised not to play computer games in 2012. Mr Lewis gave evidence of a further meeting concerning game playing early in 2013 but this evidence was vague and is denied by the Applicant. Another employee accused the Applicant of playing computer games in the first part of 2013 but when confronted by Mr Lewis about this the Applicant denied it. Mr Lewis gave evidence that on 21 August 2013 the employee who had made the earlier accusation moved the Applicant’s phone which was on the Applicant’s desk when the Applicant was absent and observed a computer game. Mr Lewis took a photo of the screen. 8 Mr Lewis did not directly observe the Applicant playing computer games at that time.

[32] The Applicant demonstrated that more was required than just moving the phone to awaken the screen. The Applicant denied playing computer games at work and said that the game in question was in fact played by her young son. The Applicant says that she was not at work on 21 August 2013 due to a work injury.

[33] The evidence does not establish that the Applicant was playing computer games during work time in 2013. I am also not satisfied that this matter was in fact raised at the meetings on 11 November or 15 November 2013.

Conclusions regarding the allegations in respect to Mr Curley

[34] Mr Montgomery was concerned about the way in which the Applicant handled the records and payments relating to Mr Curley’s work absences during 2013. Mr Curley was the Applicant’s direct manager at the time.

[35] It is accepted that the initial decision to credit a certain period of absence in January and February 2013 as paid community service (fire fighting) leave rather than deducting it from annual leave or long service leave was made on instructions to the Applicant by Mr Curley. It is accepted that the Applicant was not aware that Mr Montgomery had not approved this arrangement.

[36] Mr Montgomery says that he told the Applicant in late February and early March 2013 that the period of community service leave was now to be considered annual leave and that subsequent periods of leave were also to be recorded and paid as long service and annual leave. 9 I am confident that this was Mr Montgomery’s intention and that the Applicant did not correct the way in which the community service leave was credited. The Applicant denies that she was given this instruction by Mr Montgomery. However, the Applicant did accept that she was told by Mr Montgomery that he did not approve the arrangement concerning community service leave. It is not necessary to make a finding about what the instructions issued by Mr Montgomery were because in these circumstances the Applicant should have corrected the record.

[37] There was another period of absence during 2013 which was credited as unpaid leave when Mr Montgomery thought that it should have been paid and deducted from annual leave entitlements. There was also a period of sick leave for which Mr Curley provided medical certificates. Mr Curley gave the Applicant the medical certificates at her home. Mr Montgomery felt that the Applicant should have kept him better informed about these matters. I do not think that the Applicant did anything improper in respect to these periods. She was acting on instructions from Mr Curley and consistent with historical practice. However, I accept that given that the Applicant was aware of Mr Montgomery’s interest in Mr Curley’s attendance record following the earlier community service leave incident she should have kept Mr Montgomery better informed.

[38] Mr Montgomery asked the Applicant to provide information about Mr Curley’s attendances during 2013. The Applicant did provide information to Mr Montgomery.

[39] Mr Montgomery was concerned that Mr Curley’s absences were not properly being recognised as reducing his annual leave and long service leave entitlements. It was unclear to what extent the problems with the leave records were the responsibility of the Applicant and to what extent they were the responsibility of Mr Curley or others. I was not satisfied that the evidence established that the Applicant was primarily responsible for the inaccuracy in the records. In a situation where the Applicant was in a difficult position because she reported directly to Mr Curley, I consider that Mr Montgomery should have provided the Applicant with written instructions to protect all parties. I was not satisfied that the instructions given to the Applicant by Mr Montgomery were sufficiently clear.

[40] Having considered all the evidence and observed the witnesses, I was not satisfied that the Applicant deliberately withheld information, including medical certificates, from Mr Montgomery.

[41] In August 2013 Mr Curley resigned his employment with the Respondent. Mr Montgomery asked for some further information in a spreadsheet about the history of Mr Curley’s absences and leave to be provided and also for the final entitlements to be prepared. Mr Montgomery says that he told the Applicant that the information relating to Mr Curley’s entitlements was to be kept confidential. The Applicant says that she understood this to mean that she was not to discuss it with or show it to other employees of the Respondent. The Applicant prepared a draft payroll verification and also a summary of entitlements sheet. She provided the latter to Mr Curley. She said that this was the practice she used for all employees who were leaving and did not believe that this was contrary to Mr Montgomery’s instructions about not discussing it with other employees. She had not completed the spreadsheet about the leave history for Mr Montgomery at that stage. Mr Montgomery was unhappy when told by the Applicant that she had provided the entitlements summary to Mr Curley. He told the Applicant he was unhappy and told her not to do anything further in respect to Mr Curley’s entitlements and final pay. Mr Montgomery gave this job to another employee. In the end Mr Curley’s final payment was substantially less than that shown in the Applicants’ entitlement summary. Some of the absences contested by Mr Montgomery were accepted as reducing the entitlement to accrued annual leave and long service leave.

[42] I am satisfied that it was inappropriate for the Applicant to provide Mr Curley with her summary of his final entitlements. The Applicant should reasonably have understood the instruction to keep the matter confidential as including any sharing of the matter with Mr Curley.

[43] At the time Mr Montgomery took no action against the Applicant other than expressing his displeasure and giving the rest of the job to another employee.

[44] I note that the Applicant had a significant amount of time off work due to work injury during August and September 2013, however, I consider that the matters associated with Mr Curley’s entitlements which were finalised in August 2013 had a limited role in the termination of the Applicant in November 2013. There was no warning in respect to this matter. The conduct was not wilful disobedience of a reasonable instruction. The relevance of this matter is that the failure of the Applicant to take positive steps to keep Mr Montgomery informed and the unwise action of the Applicant in providing Mr Curley with the final entitlements estimate damaged Mr Montgomery’s trust and confidence in the Applicant. The confidence in the Applicant was further damaged because Mr Montgomery believed that the Applicant had been aware of the overstatement of Mr Curley’s leave entitlements and had not taken appropriate action to correct this. For the reasons discussed earlier there was some basis for Mr Montgomery’s concern because the Applicant had failed to correct the community service leave period. The events surrounding Mr Curley’s departure seriously damaged the relationships between the Applicant and Mr Montgomery. Inappropriate action and poor judgment by the Applicant contributed to this. Relationships between the Applicant and Mr Lewis were also poor.

[45] The legislation provides as follows:

“s387 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.”

Was there a valid reason for termination? (S 387(a))

[46] I am satisfied that the failure of the Applicant to obey a reasonable instruction to cease utilising the Respondent’s facilities and resources in conducting Mr Fleming’s business constitutes a valid reason for termination.

[47] For the reasons discussed earlier I am not satisfied that the other matters raised constitute a valid reason for termination.

Procedural matters. S387(b)-(g)

[48] I am satisfied that the Applicant was notified that the valid reason, namely the failure to obey a reasonable instruction to cease utilising the Respondent’s facilities and resources in conducting Mr Fleming’s business, was a factor which contributed to the termination of the Applicant’s employment. Section 387(b) is therefore a neutral factor in this case.

[49] However, the Applicant correctly understood that from Mr Montgomery’s perspective the issues surrounding Mr Fleming’s invoice in respect to the service vehicle and the source of information concerning that issue were the major reason for the termination. For the reasons discussed earlier these did not constitute a valid reason for termination. The Applicant rightly considered that these were the primary matters to which she had to respond in the meetings on the 11th and 15th of November. The evidence of Mr Jans, Mr Montgomery and the Applicant demonstrated that there was some lack of clarity in the manner in which the issues were put to the Applicant at the meetings on 11th and 15th of November 2013. This is particularly the case because of the absence of any prior written instructions or warnings concerning the central issue - the business relationship between Mr Fleming and the Applicant. It was also exacerbated by the absence of any termination letter. I am therefore satisfied that the Applicant did not have a reasonable opportunity to respond to the reasons related to her conduct that may justify her termination. The Applicant was not provided the procedural fairness contemplated by Section 387(c). This factor stands in favour of a finding that the termination was harsh and or unjust.

[50] Mr Montgomery agreed to the Applicant’s request for Mr Jans to be present. Section 387(d) is a neutral factor in this case.

[51] Section 387(e) is not relevant as there is no allegation of unsatisfactory performance.

[52] The business is not a small business and therefore the size of the enterprise was not likely to have impacted on the procedures followed. The absence of human resource management expertise did impact the procedures followed. It was poor management practice to not give clear instructions, to not give warnings, to not properly investigate the matters raised in response particularly in respect to the service vehicle, to not clearly set out the issues prior to and at the meetings which led to the termination and to not provide a termination letter. The failure to clearly document and articulate warnings and expectations in respect to the matters which were the basis for the termination is a failure of good management and natural justice. I am not satisfied that these are matters which require human resource management expertise. I am not satisfied that Section 387(f) and (g) are factors which stand against a finding that the termination was harsh or unjust in the circumstances of this case.

Other matters. S387(h)

[53] I consider that the relatively long period (more than 8 years) of employment and the absence of any performance concerns to be a factor in this case. I also consider the fact that the Applicant was to some extent the victim of the deterioration in the relationship between Mr Montgomery and her direct manager Mr Curley to also be a relevant factor in this case.

Conclusion as to whether the termination unfair

[54] I must balance the existence of a valid reason against the failure to give the Applicant an adequate opportunity to respond because the allegations and expectations were neither documented nor clearly articulated. I also take into account the other matters including the long period of good service.

[55] On balance I consider that the Applicant may well have ceased her conduct of the business of Mr Fleming using the resources of the Respondent if the direction in respect to this matter had been made more clearly and if she had been warned that her employment was in jeopardy if she failed to do so. Although the conduct of Mr Fleming’s business was inappropriate and constituted a valid reason for termination I was satisfied that the Applicant was seeking to minimise the involvement of the Respondent’s business and resources in Mr Fleming’s business but failed to understand the importance of complete separation. The matter only became critical for the Respondent when the service vehicle incident occurred and the Applicant was not responsible for this problem. The Applicant did not get paid for the services she provided to Mr Fleming. The Applicant alleged that another employee was involved and there was no basis to reject that evidence. The Applicant was unable to properly articulate her response to these matters at the meetings which led to the termination because of the procedural failing in this case - the failure to provide any clear warning and the failure to clearly articulate the issues of concern. I also consider that the failure to properly investigate and evaluate the responsibility of the Applicant in the service vehicle matter clouded the judgment of the Respondent in respect to the appropriate disciplinary response to the Applicant’s conduct. In other words the Respondent considered the Applicant’s conduct in failing to completely cease the business of Mr Fleming using the Respondent’s facilities more harshly because of the judgments made on the other matters. I accept that there were some shortcomings in the Applicant’s conduct in respect to Mr Curley’s entitlements. In all of the circumstances I consider that the termination of the Applicant was harsh and unjust. I am satisfied that the termination was unfair.

Remedy

[56] The Applicant does not seek reinstatement. I do not consider reinstatement would be appropriate taking into account the deterioration in the relationships. Having decided that reinstatement is not appropriate I must consider whether compensation is appropriate. In the circumstances of this case I consider that the harshness and unjustness of the termination process means that compensation is appropriate.

[57] The Applicant earned $1200 per week not including superannuation. The Applicant has found a new job effective from 28 January 2014. That new job is a temporary job where the Applicant is earning $1056 per week not including superannuation. I am satisfied that the employment will continue at least until any Order I might make takes effect. The Applicant had no income from 17 November 2013 until 28 January 2014. The Applicant was looking for work during that period and so I am satisfied that the Applicant has taken reasonable efforts to mitigate her loss.

[58] I estimate that the Applicant would, notwithstanding the length of her service, only have continued in employment with the Respondent for a period of a further eight weeks. The primary factor in this estimation is my assessment of the manner in which relationships had deteriorated over a period of time. The poor judgements shown by the Applicant in respect to the matters involving Mr Curley’s entitlements and the business relationship with Mr Fleming contributed significantly to this. I do not consider that this was likely to improve.

[59] The Applicant would have earned $9,600 during the eight week period. The Applicant did not earn anything during the eight weeks following the termination. The only issue of uncertainty is my estimate of the period of further employment and therefore I do not consider that any deduction for contingency is required. I will deduct an amount for misconduct. I have found that the conduct of Mr Fleming’s business using the facilities of the Respondent was misconduct. I will deduct 20% for misconduct. I will order that compensation of $7,680 less appropriate taxation, be paid to the Applicant within fourteen days.

COMMISSIONER

Appearances:

Mr T O’Loughlin appeared for the Applicant.

Mr B Montgomery and Mr R Lewis, supported by Mr R Smith appeared for the Respondent.

Hearing details:

2014

Morwell

April 10 and 11

 1   For example Exhibit H 2D, at paras 7 and 8.

 2   Exhibit H 1, Attachment 10.

 3   Exhibit P 2, at para 8.

 4   Exhibit H 1, Attachment 2.

 5   Exhibit H 1, Attachment 4.

 6   Exhibit H1, Attachment 1.

 7   Exhibit P 5.

 8   Exhibit H 3.

 9   Exhibit H 2A, Point 1 under the heading “in regard to the incidents concerning Dennis Curley.

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