Ms Denise Hardie v Fairbridge Western Australia Inc
[2016] FWC 6381
•15 SEPTEMBER 2016
| [2016] FWC 6381 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Denise Hardie
v
Fairbridge Western Australia Inc
(U2016/2597)
COMMISSIONER CLOGHAN | PERTH, 15 SEPTEMBER 2016 |
Application for relief from unfair dismissal.
[1] Ms Denise Hardie (Ms Hardie or Applicant) has made an application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her former employer, Fairbridge Western Australia Inc (Fairbridge or Employer).
[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[3] At the hearing, the Applicant was represented by Ms Ayen Nyariel, Industrial Officer, Australian Services Union, Western Australian Branch. Ms Hardie gave evidence on her own behalf. In addition, Mr Anderson the former Chief Executive Officer (CEO) from 1998 to April 2016 and Mr Kevin Fisher, Registered Psychologist, gave evidence for the Applicant.
[4] Fairbridge was represented by the CEO, Mr David Russell. Both Mr Russell and Ms Susan Snowball, Corporate Services Manager, gave evidence on behalf of the Respondent.
[5] This is my decision and reasons for decision on Ms Hardie’s application.
AGREED FACTS
[6] The parties agree that Ms Hardie was employed by Fairbridge since April 2014 as a Programs Manager until her employment was terminated on 13 May 2016. 1
TERMINATION OF EMPLOYMENT LETTER
[7] On 13 May 2016, the Applicant received from Mr Russell the following correspondence:
“Further to our discussions over the last week, you have confirmed it is your intention to leave Fairbridge effective 30th June 2016.
As the management team and I work together to shape the future of Fairbridge to ensure its suitability going forward, you have clearly articulated you are not happy with the direction and strategies proposed therefore I have decided to end your employment today with Fairbridge.
In line with your contract, a notice period of two weeks will be paid on Monday 16th May 2016” 2
RELEVANT BACKGROUND
[8] Mr Russell commenced as CEO on 27 April 2016.
[9] Ms Hardie’s employment ceased 13 working days later on 13 May 2016.
[10] Mr Russell instigated a weekly management meeting of all the senior staff. The meetings were an opportunity to “discuss the path forward for Fairbridge including the application of company policies”. 3
[11] At the end of his first full working week, Mr Russell discussed with Ms Hardie a “restructure I was about to undertake and described several positions that would be available in the new structure. I asked if she would consider these positions over the weekend and let me know if there was any interest. No position offer was made.” 4
[12] I am satisfied, on the evidence, that a discussion took place on 6 May 2016 between Mr Russell and Ms Hardie in which a proposed staffing restructure was described by Mr Russell. Mr Russell asked the Applicant to consider positions within the proposed restructure.
[13] In the termination of employment letter, Mr Russell referred to Ms Hardie’s “intention to leave Fairbridge effective 30 June 2016”. 5
[14] Ms Hardie does not refer to an intention to leave Fairbridge in her witness statement but in reply to the Employer’s response to the application, she states, “I categorically deny that I stated I was leaving”, “I have never submitted a resignation nor intended to” and it was David Russell who told the Management team that I would be “moving on”. 6
[15] The disputed resignation is said to have occurred on 10 May 2016.
[16] The disputed announcement of Ms Hardie’s resignation to the Management team occurred on 11 May 2016.
[17] On 12 and 13 May 2016, Fairbridge submit that the CEO received verbal comments from the Applicant’s peers that she was acting in a disruptive and negative manner. In addition, the CEO has also observed behaviours by Ms Hardie that were not conducive with the operations of Fairbridge. 7
[18] On the morning of 13 May 2016, after a discussion with one of Ms Hardie’s peers, Mr Russell made a decision to terminate her employment with immediate effect.
[19] At 11:32 am, Mr Russell sent an email to Ms Hardie requesting her to meet with him at 2:30 pm. 8
[20] Ms Hardie viewed the email at approximately 3:00 pm.
[21] Notwithstanding the CEO’s meeting request, Ms Hardie’s evidence is, “By the time I opened my computer the meeting request had expired and I had started my weekly debrief meeting with co-workers.” 9
[22] At approximately 3:20 pm, Mr Russell entered Ms Hardie’s office and, according to her, “demanded” to know whether they were having a meeting. Ms Hardie’s evidence is that she replied, “I couldn’t right then and was happy to meet on Monday or I would meet him outside if he had anything urgent to discuss.” 10 Mr Fisher described Mr Russell’s request for the scheduled meeting not as “demanding” but as “forthright”.11
[23] Ms Hardie and Mr Russell met outside the Applicant’s office and after a discussion of approximately three (3) minutes, the Applicant was given her letter of termination of employment.
[24] The Applicant denies all allegations “made against her”. 12
RELEVANT LEGISLATIVE FRAMEWORK
[25] There is no dispute between the parties that Ms Hardie has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework is ss.385 and 387 of the FW Act.
[26] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) ...
(d) ...”
[27] The criteria for whether a dismissal was harsh, unjust or unreasonable can be found at s.387 of the FW Act and 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] Section 387 of the FW Act sets out the matters which the Commission must take into account in determining whether a dismissal was “harsh, unjust or unreasonable”. In seriatim, they are as follows.
s.387 (a) - was there a valid reason for the Applicant’s dismissal?
[29] A valid reason for dismissal is one that is “sound, defensible or well founded and not capricious, fanciful or spiteful”. The authority for this approach is found in the often cited case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373, which reads as follows:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”
[30] A valid reason for dismissal attempts to balance, in a practical way, the needs of employees and employers.
[31] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 13. Further,
“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed on reasonable grounds after sufficient enquiry that the employee was guilty of the conduct which resulted in the termination”. 14
[32] I now turn to the relevant allegations which the Applicant denies.
Did the Applicant resign?
[33] In her witness statement, Ms Hardie refers to a meeting on 6 May 2016 in which Mr Russell outlined his proposed staffing structure where he “offered” her a position. While Ms Hardie continues in her written evidence to state that, “there was no written offer or process”, I am satisfied, on the evidence, that there was a discussion and Mr Russell, at least, requested her to consider some positions in the new structure.
[34] Ms Hardie does not state in her written evidence when or how she responded to Mr Russell after considering the positions in the new structure.
[35] Mr Russell’s evidence is that on 10 May 2016, Ms Hardie “approached me and told me she had no interest in the positions and in fact was resigning and finishing working for Fairbridge at the end of June. I have attached my calendar with the contemporaneous note made at the time”. 15 This evidence was not disturbed in cross examination.
[36] In support of Mr Russell’s evidence, Fairbridge has provided emails sent by Ms Hardie after her conversation with Mr Russell on 10 May 2016. The emails contain the following statements:
11 May 2016: “I will be moving on from Fairbridge end of June …”
12 May 2016: “As you may already know it is my intention to move on from Fairbridge at the end of June, possibly earlier should another opportunity present itself.
I am now working out transition plans for you all …”
12 May 2016: “If notification comes through after my departure…”
13 May 2016 7:41 am: “Thinking about the whole Fairbridge cluster f^ck since 3 am. 30 June can’t come quick enough and then I’m looking forward to being a stay at home mum for a bit”
[37] Notwithstanding these statements to other persons, Ms Hardie sought to persuade the Commission that she had not resigned. I was not persuaded by Ms Hardie’s evidence.
[38] I have no reason to disbelieve Mr Russell’s calendar note that Ms Hardie gave notice to terminate her employment on 10 May 2016.
[39] Secondly, it is notable that on three (3) separate occasions Ms Hardie gave the following oral evidence:
“So are you still saying that you did not resign?”--- “I certainly didn't tender a letter of resignation, no.” 16
“Did you tell me that you had resigned?” --- “No.” 17
“Did you tell any of the staff that you had resigned?” --- “I had not resigned, so, no, I hadn't.” 18
“You still say that you had not given your resignation?” --- “No, I hadn't written my resignation.” 19
“So what did you mean in all of these emails about finishing up on the 30th? What did you mean? Did you mean that you were thinking of resigning, that you had resigned, that you were going to take leave? I mean, it's fairly plain to me reading these that you were saying you were resigning. Did you not mean that you were resigning in these emails?” --- “I would resign if the financial situation of Fairbridge could not be rectified.” 20
“Do you deny saying to the management meeting that you had resigned?”--- “Yes, I do.” 21
“Did you have, from when you submitted your resignation on the 11th, meetings with other staff members where you complained about the reorganisation - the status of yourself?” --- “I did not submit my resignation on the 11th and…” 22
“Ms Hardie, I've got Mr Russell's witness statement and he says - and this is a contemporaneous note made at the time, and he has provided that as part of his witness statement - "Denise gave notice to finish end June." Is there any reason why I should not believe that that file note is untrue?”---“I didn't issue a letter of resignation” 23
[40] Ms Hardie’s evidence was unconvincing that she would sit in a Management meeting and listen to Mr Russell state that she was “moving on” and never took issue with such a comment but “assumed” moving on would be a change of role. 24 With respect to this issue, I prefer the evidence of Mr Russell and Ms Snowball that it was Ms Hardie who informed those present at the Management meeting that she was leaving her employment at the end of June 2016.
[41] Having heard the evidence of both Mr Russell and Ms Hardie, I am comfortably satisfied that Ms Hardie verbally tendered her resignation on 10 May 2016 to finish her employment on 30 June 2016.
[42] I am also satisfied, on the evidence, that after tendering her resignation verbally, Ms Hardie has attempted to re-interpret her resignation as not being a resignation, because it was not given in written form.
Direction and Strategies of Fairbridge
[43] In the letter terminating Ms Hardie’s employment, it is stated by Mr Russell that Ms Hardie has “clearly articulated you are not happy with the directions and strategies proposed…”. Ms Hardie “disputes” the assertion. 25
[44] In her written statement, Ms Hardie states why she disputes this assertion as follows:
“The letter also stated that I had clearly articulated that I am not happy with the direction and strategies proposed to move Fairbridge forward. I dispute this. As a Senior Manager I had discussed my concerns and made alternative recommendations in the management meeting about some significant strategic and programmatic changes that Mr Russell was proposing. I believe that was part of my role and responsibilities as a Senior Manager. The Board had also given the directive to the senior management team to have input into the future direction at Fairbridge.”
[45] In her reply to the Employer’s response to Ms Hardie’s initial application, she states:
“I believe the conduct shown by the CEO David Russell, HR Manager Susan Snowball and Marina Muir are in direct contrast to the values and philosophy of Fairbridge and their conduct has created a culture of fear and uncertainty amongst staff.”
[46] Further,
“In the two management meeting (sic) that David Russell was in attendance, David and myself had robust conversations around … I do not constitute this as being disruptive to the management team…” 26
[47] The direction and strategies of Fairbridge is also referred to by Ms Hardie in the following evidence:
“… I believe that I was terminated to better assist the new CEO in meeting his financial aims and that, which he had stated many times before that Fairbridge would now be moving to a “profit making entity” and if anyone was not bringing in a profit, that they should be worried. He had clearly stated on many occasions in front of other managers and stakeholders that he holds (in his words) “touchy feely stuff” in contempt – referring to my work as a programs manager” 27
and
“I believe that my unfair dismissal was to benefit the deficit cash flow financial situation at Fairbridge through a restructure being directed by David Russell and Deputy Chair Mirina Muir. This can be further demonstrated by the pattern of terminations of the previous CEO, Executive Assistant, I and the dismantling of the programs directive.” 28
[48] In addition to Ms Hardie’s evidence regarding the strategy and direction of Fairbridge, both her written and oral evidence bristle with her negative assessment of the CEO. The relationship between the CEO and Ms Hardie, as a Senior Manager, is best illustrated by the evidence:
“David came into my office at approximately 3:20 pm and demanded (Mr Fisher describes as “forthright” 29)…a meeting to which I replied I couldn’t right then and was happy to meet on Monday or I would meet him outside if he had anything urgent to discuss.”30
[49] Two things are immediately apparent from this evidence. Firstly, Ms Hardie, even if she had not seen the meeting request for a 2:30 pm meeting with the CEO until approximately 3:00 pm, she did not give Mr Russell the courtesy of letting him know immediately of the circumstances preventing her from attending the meeting. Secondly, having the knowledge that a meeting had been arranged and not giving Mr Russell the courtesy of letting him know why she was unable to attend, advised him that she “couldn’t” meet with him because she was part of a debrief meeting. In my view, this action demonstrates contempt for the CEO.
[50] Ms Hardie’s actions towards the CEO, her superior, were disrespectful and compounded by the fact that she made these comments in front of other employees. In short, her actions were provocative, discourteous and an affront to Mr Russell’s position as CEO.
[51] Ms Hardie states in her evidence, “If I wasn’t happy with the way things were going at Fairbridge, I would have resigned myself instead of being ‘pushed out’.” 31
[52] On her own evidence, I find that Ms Hardie was clearly unhappy with the direction and strategies that Mr Russell was articulating for Fairbridge. Ms Hardie’s attitude went beyond simply expressing “concerns”.
[53] It is also clear from Ms Hardie’s evidence that she portrayed certain facts to fit with her dissatisfaction with the direction of where Fairbridge was moving to.
[54] Finally, Ms Hardie personalised the organisation’s direction with allegations that Mr Russell, Ms Snowball and Deputy Chair Ms Marina Muir, have created a “culture of fear and uncertainty amongst staff”.
[55] I find that Mr Russell’s statement in Ms Hardie’s letter of termination that she was unhappy with the direction and strategies of Fairbridge, a fair assessment of her views.
Concerns regarding Ms Hardie’s conduct after 10 May 2016
[56] Mr Russell’s evidence is that up until 10 May 2016, he viewed Ms Hardie as a “constructive member of the team” 32. On 6 May 2016, he asked Ms Hardie to consider positions in his proposed restructure. “It was subsequent to her resignation, which was two and a half days, that her performance was an issue”33.
[57] Mr Russell’s evidence is that Ms Snowball came to him on 12 May 2016 expressing concerns that Ms Hardie, “was continuing to share information of a confidential nature”. Ms Snowball provided to Mr Russell a previous email she had sent to Ms Hardie and copied to the Acting CEO, at the time, on the same issue. In the email, Ms Snowball states, “over the last few two weeks you have demonstrated on several occasions a complete lack of professionalism as the point of confidentiality yesterday was a result of people complaining about you openly discussing the previous week’s meeting” 34.
[58] Ms Hardie’s evidence in response to Ms Snowball’s email of 24 April 2016 lacked any force and an ineffective response regarding Ms Snowball’s concerns.
[59] On 13 May 2016, Mr Russell had a conversation with Ms Matthew concerning Ms Hardie’s alleged disruptive behaviour during a meeting in which Ms Matthew was present that morning. 35
[60] After the conversation with Ms Matthew, Mr Russell considered alternative courses of action. Mr Russell’s evidence is that he considered “performance management” of Ms Hardie for the remainder of her notice period. However, in view of the short period of time before the end of Ms Hardie’s employment, Mr Russell decided to give her notice of termination of employment and payment in lieu of that notice. In Ms Hardie’s case she was entitled to, and received, three (3) weeks payment on 16 and 17 May 2016.
[61] When asked in cross-examination if she met with staff after resigning, Ms Hardie replied, “…no, I didn’t have any meetings with any staff”. 36 When asked a second time if she met with Ms Matthew after 11 May 2016, Ms Hardie replied, “…I would meet regularly as part of my normal duties”.37 When asked whether she raised any concerns with Ms Matthew, Ms Hardie replied, “No, I don’t believe so’.38
[62] When it was put to Ms Hardie by Mr Russell whether Ms Snowball and Ms Matthew should have had any concerns about her behaviour, she replied, “I would have no reasons to think that they would”. 39 However, when it was put to Ms Hardie that Ms Snowball had come to him, and stated that Ms Hardie’s behaviour was disruptive and aggressive, she replied, “to be fair, I can’t actually even remember what happened on 12 May, but I would be surprise she made those comments”.40
[63] With respect to Ms Matthew, Mr Russell put to Ms Hardie that Ms Matthew reported to him that she had been “upset, aggressive and uncooperative”. 41 Ms Hardie’s response was to say, if Ms Matthew “felt that strong” she should have provided a witness statement and “if the conversation happened, I didn’t hear it”.42 Subsequently, in re-examination, Ms Hardie’s evidence was “to be brutally honest, I don’t recall a meeting on that day. I don’t recall any conversation with Iggy [Ms Matthew] that would have alluded to that [disruptive behaviour]”.43
[64] Having considered the evidence, I find, on the balance of probabilities, that Ms Snowball and Ms Matthew had separate meetings with Ms Hardie. Secondly, her behaviour was serious enough to warrant both employees taking the matter up with their CEO. Finally, the behaviour was sufficiently serious to demonstrate to Mr Russell that Ms Hardie was incapable of conducting herself properly, during her period of notice. I find that this was the valid reason for the Employer to terminate Ms Hardie’s employment.
[65] I say that Ms Hardie’s inability to conduct herself properly was the valid reason for the Employer to terminate her employment, despite the apparent inexperience and explanation given by Mr Russell in his evidence with respect to the dismissal. Mr Russell’s evidence was as follows:
“Is it because of her conduct that you had heard from Ms Iggy?---I had received input from three - two peers and I had observed myself, but at the end I did not terminate her for cause. I terminated her in line with her contract.
What do you mean you terminated her in line with her contract?---Well, her contract required two weeks' notice from herself or two weeks' notice from myself. I did not bring into the termination her conduct or performance.
So you did not terminate her based on her conduct. Is that was you're saying?---It was influence, but it was not the primary reason for her termination. I terminated without cause in line with her contract.
Okay. So you are saying you terminated her without cause. You've got a human resources team in your department?---No.” 44
[66] Ms Hardie’s contract of employment explicitly requires her to perform all duties to the best of her ability and at all times and to comply with all reasonable and lawful directions. 45
[67] As I have already indicated, the real reason why Ms Hardie’s dismissal occurred was because of the manner in which she conducted herself, after resigning.
[68] The dismissal was valid and reasonable in all the circumstances because as a senior manager, notwithstanding that she had tendered her resignation, Ms Hardie was obliged to conduct herself properly and not in a manner that damages what the Board of Fairbridge and CEO were trying to achieve.
[69] An employee has a duty to cooperate with their employer and not impede how it goes about its business. Quite clearly, on the evidence, Ms Hardie has a different view to the Board and Mr Russell regarding the direction and strategies of Fairbridge. Ms Hardie may have a view about what Fairbridge’s philosophy and values should be, however, that is not the point. The Fairbridge Board is charged with that responsibility, and the CEO is employed to implement such a direction and strategies.
[70] As the former United States President, John F Kennedy, remarked “change is the law of life”. Employers have to respond to changing circumstances. Likewise, employees are expected to adapt to changing circumstance and not deliberately exhibit behaviour, which repudiates the direction adopted by the Board and CEO.
s.387(b) - notification of the reasons for termination of employment
[71] The Applicant asserts that she was not notified of the reason for termination of her employment until issued with her termination of employment letter on 13 May 2016.
[72] The Applicant states in her written evidence that Mr Russell, prior to handing over a letter terminating her employment that “he could not work with me”. 46 In oral evidence, Ms Hardie added that Mr Russell had said to her, “he didn’t like me”.47
[73] Mr Russell’s file notes made within an hour of the discussion on 13 May 2016 records that he informed Ms Hardie that:
“…it was obvious that she could not ‘get on board’ with the changes and she had previously made it clear she was leaving at end of June I was terminating her employment now”. 48
[74] In view of the fact that Mr Russell had prepared the letter terminating Ms Hardie’s employment prior to the meeting, it would seem unusual to depart from the “script”, he had already formulated in written form. Further, Mr Russell provided a contemporaneous record of his conversation in evidence. For these reasons, I am satisfied that Mr Russell notified, in a general sense, the reasons for Ms Hardie’s termination of employment in the discussion on 13 May 2016, and in a more particular form, in the letter terminating her employment.
[75] On the balance of probabilities, I accept Ms Hardie’s evidence that Mr Russell stated to her that “he could not work with me”. However, I do not accept her evidence that Mr Russell stated “he didn’t like me”; in my view that evidence was designed to fit in with the overall personalisation by the Applicant of Mr Russell.
s.387(c) - opportunity to respond to reason(s) for termination of employment
[76] I am satisfied, on the evidence, that the circumstances did not lend themselves to the Applicant having a discussion with the CEO regarding her conduct or capacity. I find accordingly.
s.387(d) - support person
[77] I find that the Employer did not refuse the Applicant a support person present to any discussion relating to the dismissal. However, my finding has to be interpreted in the context that the Applicant did not know that she was to be dismissed at the meeting with Mr Russell Furthermore, the meeting only lasted approximately three (3) minutes.
s.387(e) - unsatisfactory performance
[78] I have no evidence to suggest that Ms Hardie did not carry out her duties, as a Program Manager, other than satisfactorily.
[79] However, Ms Hardie describes herself, in written evidence, as “a senior manager in the position of Programs Manager”. 49 Further, Ms Hardie was a direct report to Mr Russell and one of the senior management team. Finally, what is at issue in this application is Ms Hardie’s conduct and performance, as a senior manager, after tendering her resignation.
[80] I find that Ms Hardie’s conduct was unsatisfactory and unprofessional of a senior manager after she had resigned. Ms Hardie’s unsatisfactory conduct was evident to Ms Snowball and Ms Matthew and relayed to the CEO. In addition, Mr Russell had made his own observations. The relationship between CEO and subordinate reached a low point at the failed meeting at 2:30 pm on 13 May 2016.
s.387(e) - if the dismissal related to unsatisfactory performance, had Ms Hardie been warned about that unsatisfactory performance before the dismissal?
[81] While I find, on the evidence, that Ms Hardie’s conduct and performance after she tendered her resignation, was not befitting that of a senior manager, I also find that she was not warned about that conduct or unsatisfactory performance prior to her dismissal.
s.387(f) and (g) - size of the Employer and access to human resource specialists or expertise
[82] The Employer states in its response to Ms Hardie’s application that it employs 127 employees.
[83] Despite its size, the Employer does not have dedicated human resource personnel and it is obvious that Fairbridge did not access or utilise human resource expertise in the process of dismissing Ms Hardie.
s.387(h) - other matters
[84] In considering Ms Hardie’s application, I have, at all times, been mindful of the seniority of her position and that she reported directly to the CEO.
[85] Secondly, I have approached Ms Hardie’s application from a common sense perspective. In doing so, I have asked myself the question, “what would be reasonable in all the circumstances?” In my view, it would not be reasonable for a CEO to allow an employee to continually behave in a disruptive way, for a further period of seven (7) weeks until their notice period expired.
[86] The standard of behaviour expected of an employee at work, especially a senior manager, is not lowered merely because the employee has given notice to resign.
[87] Finally, while the procedure to effect the dismissal was not perfect, I am satisfied that this was primarily due to the circumstance, and secondly, Mr Russell and Fairbridge’s lack of access to human resource knowledge and expertise. Notwithstanding these gaps in procedure, there are no grounds in which I am able to find that they are of such a magnitude to render the dismissal harsh, unjust or unreasonable.
CONCLUSION
[88] In conclusion, for the reasons set out above, I am satisfied that Ms Hardie’s dismissal from her employment was not unfair pursuant to s.387 of the FW Act. Accordingly, the application must be dismissed. An Order to this effect is issued jointly with this Decision.
COMMISSIONER
Appearances:
A Nyariel, Industrial Officer of the ASU on behalf of the Applicant.
D Russell on behalf of Fairbridge Western Australia Inc.
Hearing details:
2016:
Perth,
6 September.
1 Exhibit R2
2 Exhibit A2(H)
3 Exhibit R4 (16)
4 Exhibit R4 (8)
5 Exhibit A2 (H)
6 Exhibit A2
7 Exhibit R1 (4) and (5)
8 Exhibit A1 (5)
9 Exhibit A2 (4)
10 Exhibit A2 (8)
11 Transcript PN355
12 Exhibit A1 (10)
13 Brink v TWU PR922612 at paragraph [7]
14 King v Freshmore (Vic) Pty Ltd S4213 at paragraph [24]
15 Exhibit R4 (9)
16 Transcript PN128
17 Transcript PN130
18 Transcript PN131
19 Transcript PN151
20 Transcript PN166
21 Transcript PN168
22 Transcript PN212
23 Transcript PN235
24 Exhibit A2
25 Exhibit A1(9)
26 Exhibit A2 (23)-(27)
27 Exhibit A2 (16)
28 Exhibit A2 (2)
29 Transcript PN355
30 Exhibit A2 (8)
31 Exhibit A2(17)
32 Transcript PN454
33 Transcript PN454
34 Exhibit R4 (2)
35 Transcript PN250; PN452
36 Transcript PN212
37 Transcript PN214
38 Transcript PN218
39 Transcript PN220
40 Transcript PN225
41 Transcript PN226
42 Transcript PN226
43 Transcript PN250
44 Transcript PN460 to PN463
45 Exhibit A2 (G)
46 Exhibit A2 (9)
47 Transcript PN102
48 Exhibit R4 (DR-4)
49 Exhibit A2 (1)
Printed by authority of the Commonwealth Government Printer
<Price code C, PR585115>
0